It’s been 48 years since a young Morris Sheppard “Buzz” Arnold strummed the guitar and sang Bob Dylan songs on a stage at the Ozark Folk Festival in Eureka Springs.
But it’s safe to say there’s still a little bit of “hippie” in this distinguished gentleman from Little Rock who, at age 71, has been quietly serving for the past year as the presiding judge on the nation’s Foreign Intelligence Surveillance Court of Review while wrapping up 21 years in his more-public job on the 8th U.S. Circuit Court of Appeals.
Now, Arnold says, he is planning to retire from both jobs, effective next Sunday,and move on to whatever might be “blowin’ in the wind.”
Known for his intellect, eloquent writing and knowledge of Arkansas history - which have served him well as an 8th Circuit judge - Arnold is also recognizable for his pinstriped seersucker suits and shock of longish gray hair that sometimes sneaks past his suit collars.
His nickname, Buzz, is a lifelong moniker imposed by his step-grandfather, the late Sen. Tom Connally, after Sergeant BuzFuz in Charles Dickens’ The Pickwick Papers.
In a recent interview in Little Rock, he said he doesn’t have any particular plans for retirement. He spoke as he was vacating his 31stfloor office in the Metropolitan National Bank Building, where he had a treetop view of the atrium of the federal courthouse, a building that is named for his now-deceased older brother, Richard, who also served on the 8th Circuit.
“I’m almost 72, and it’s time to move on before I wear out my welcome,” he said with a shrug, adding, “I’m not sure what I’ll do. I might teach a class at some law school or another. I might do mediation. I might practice law. I don’t have any plans. I’m going to do what comes next, as they say.”
He has already published eight books - nine, if you count a second edition of a textbook - and numerous articles, mostly pertaining to English legal history and colonial Arkansas. He didn’t rule out the possibility of continuing to write.
“I can’t seem to stop,” he said.
Before President George H.W. Bush named him to the 8th Circuit on May 26, 1992, he was a U.S. district judge in Fort Smith in the state’s Western District. He was appointed to the district court position by President Ronald Reagan on Dec. 17, 1985.
Earlier, there were stints as a law professor in Arkansas, Indiana and Pennsylvania; as general counsel and chairman of the Republican Party of Arkansas; and some time in private practice. He was born into a family of lawyers and judges and grew up on the Arkansas side of Texarkana, under the guidance of scholarly parents with roots in law and politics, attended Yale University and graduated first in his class in 1968 from the University of Arkansas School of Law.
While most of Arnold’s jobs have left a well-publicized trail of accolades, from his written opinions to his books that have won prizes for both their literary and historical quality, it is his less-public role as the top judge of the nation’s top surveillance court that he focused on last week.
For starters, Arnold cringes at the description of the Foreign Intelligence Surveillance Court and its appellate court, the Court of Review, as “secret” courts.
That label has been frequently used in dozens of recent articles that began June 5, when a former National Security Agency contractor, Edward Snowden, leaked to a British newspaper, The Guardian, a highly classified court order directing a subsidiary of Verizon Communications to give the government logs of calls between the United States and abroad. It was followed by Snowden’s disclosure of a program called Prism, through which the government collects Internet data on foreigners abroad from companies such as Google, Facebook and Apple.
Among intense criticism about the “secret court” authorizing the government to snoop into the private emails and telephone calls of American citizens, President Barack Obama and others have rushed to explain that the data collection, which has gone on for years, captures only raw numbers for the most part and is aimed at foiling potential terrorist attacks.
Among the 11 judges on the surveillance court is U.S. District Judge Susan Webber Wright in Little Rock, who was appointed by the Chief Justice of the United States John Roberts in May of 2009. Roberts appointed Arnold in 2008 to the three-judge review court, which hears government appeals of surveillance requests that the lower court has denied. Just last year, Roberts appointed Arnold as presiding judge of the Court of Review.
Members of both courts serve seven-year terms and are not eligible for reappointment.
Arnold noted that the surveillance courts weren’t created until 1978, and, “Before that, there was no court that had review over the government’s foreign intelligence surveillance. The executive branch was free to do what it wanted to do, with no judicial oversight.”
Rather than worry about a “secret” court authorizing nosy intrusions into citizens’ privacy, Arnold said Americans should be glad that the courts consist of federal judges who know a thing or two about the law and are there as a protective barrier between the executive branch and individuals.
“They need to consider that the people who have been put in charge of the process have taken an oath to uphold the Constitution,” Arnold said, noting, “I’m as critical of the government as anyone, but the criticism needs to be reasonable.”
He pointed out that Congress passed the law creating the surveillance court and gets briefed on what it does, the executive branch makes applications to the court, and the judicial branch reviews the applications.
He said derisive comments about the so-called secretive nature of the surveillance courts is misguided, because the way the court operates is really no different than the procedures followed every day in federal, state and local courts across the country.
“There are hundreds, if not thousands, of ‘secret’ courts in this country,” Arnold said. “You have to understand, these courts are warrant courts,” which, by their nature, cannot act openly without allowing the target of an arrest warrant to flee before being apprehended or prompting the disposal of items that are subject to seizure.
Because of the necessary element of surprise, he said such courts must also be free to consider “ex-parte,” or one-sided, requests from law enforcement agents or prosecutors.
All warrant courts are both secret and ex-parte, he said. The use of those labels in a derisive manner, he said, “is deceptive.”
Another complaint he hears about the surveillance court is that “the government hardly ever loses.”
To that, he says, “That’s true, but the government hardly ever loses a Title III application [a warrant request before a federal district judge] either, but the reason is that the government adheres very closely to the constitutional and statutory requirements” when seeking a warrant.
He noted that last year, only two of about 3,600 requests for warrants in the nation’s federal courthouses were denied.
Referring to people who are suspicious of the surveillance court, he said, “Do they really believe that every federal court in the country is in the tank for this country? … My perspective is the court is adhering assiduously to the relevant constitutional and statutory provisions. That doesn’t mean the statute can’t be improved, but it’s not up to me.”
Arnold said he doesn’t know which of his two appellate jobs he’ll miss the most when he retires, but, “I’ll try to be a good citizen in other ways.”
When he was appointed to the 8th Circuit alongside his brother, Richard Sheppard Arnold, who was five years older, they made history as the first pair of brothers on a federal appeals court.
The law changed a short time later to prevent siblings from serving together, Arnold said, adding with a smile, “My brother and I call it the Arnold bill.”
DISTRICT COURT A TRIAL
To him, it was a relief to leave behind his duties as a district judge, where he handled some well-known cases, including a seven-week jury trial in 1988 in which 13 white supremacists were accused of conspiring to overthrow the government and assassinate another federal judge and an FBI agent. They were ultimately acquitted of all charges.
As a district judge, he said, “you spend a lot of weekends getting ready for cases that are then canceled at the last minute. It’s very chaotic. I compare it to standing before an automatic pitching machine and trying to hit all the balls back.”
Being a district judge, he said, “was the most difficult job of my life.”
Being an appellate judge is more fun, he said, noting that although the 11 active judges on the appellate court sometimes travel away from the St.Louis courthouse where the 8th Circuit is based to hear oral arguments in other cities in the circuit, it’s less hectic than constantly traveling between cities in a judicial district to preside over cases.
His favorite cases, he said, have been those involving the Bill of Rights - specifically, the First and Fourth amendments - as well as “just a regular ol’ tort case, like a slip and fall,” which can end up in federal court if the parties are in different states.
Asked if any of the numerous opinions he has penned as an 8th Circuit judge make him particularly proud, Arnold readily cited a 2001 case, Henderson v. Norris, in which the 8th Circuit granted a habeas petition from a man whom a state-court jury had sentenced to life in prison without the possibility of parole for first-offense delivery of a small amount of cocaine.
In a rare ruling, the 8th Circuit panel agreed with the convict that the sentence amounted to a violation of the Eighth Amendment, which prohibits cruel and unusual punishment, and ordered him to be resentenced or released.
“He was selling cocaine that weighed less than a paper clip,” Arnold recalled, shaking his head.
DRAWING FROM THE WELL
Arnold indicated that at least some of his empathy and compassion on the bench,which has been cited by lawyers anonymously queried by the Almanac of the Federal Judiciary, stems from an off-the-cuff conversation he had in his early days as an appellate judge while riding down an elevator after hearing oral arguments in St. Paul, Minn.
He said he turned to an attorney who had just been before the three-judge panel he was on, and asked, “Well, how was it?”
She replied, “I felt like I was being beat up,” he remembered.
After that, Arnold said, he started taking a few minutes before each session of oral arguments to stand quietly in the well of the court, at the podium where attorneys stand to argue their cases before the elevated panel of robed judges, “to feel what it’s like in the well, to have more empathy.”
Arnold said he has become “a lot less aggressive now than I used to be in my questioning.” In his early days on the appeals court, the Almanac quoted attorneys saying he had a “difficult demeanor,” and “he can be curt and he can be sarcastic.”
In the most recent edition, attorneys note that he remains an active questioner during oral arguments, while being “courteous” and “good-hearted,” with “a sense of humor” and humility.
U.S. Circuit Judge Roger Wollman of Sioux Falls, S.D., the only 8th Circuit judge to serve alongside Arnold for his entire tenure, described him recently as a rare mix of a brilliant academic and a nice, funny guy.
“We will miss him greatly, just as we still miss his brother, Arnold,” Wollman said. “He has a great knowledge of legal history, he’s such a scholar and he has a wonderful personality, with a great sense of humor.”
Wollman said that he was always “in awe” of Arnold’s writing ability, which displayed intellectual brilliance in a very practical, “readable form.”
Every time he reads one of Arnold’s opinions, Wollman said, “I say, ‘Why can’t I write like that?’”
He said both Arnold brothers made an impact on the court with their strong academic backgrounds and incredible intellectual abilities that were buoyed by their “down-to-earth humor.”
Wollman recalled fondly the atmosphere in the 8th Circuit “robing room” before Richard Arnold, a President Jimmy Carter appointee, died in September 2004 at age 68.
He said the Arnold brothers “would both start conversing with each other in Latin, which would really make the rest of us feel ignorant. Yet they never flaunted their brilliance or tried to ‘one-up’ us. They were both very kind.”
“I just wish members of the public knew how collegial we are, and how much respect we have for each other,” Wollman said of the 8th Circuit judges, “because when we come out [into the courtroom], we are, of course, very solemn.”LEGALITIES ASIDE
Arnold will also be fondly remembered for his detailed, original contributions to Arkansas history, said Frances Ross, who retired last semester after 50 years of teaching in the University of Arkansas at Little Rock history department.
Ross, considered an expert in legal history, has been helping compile a soon-to-be-published collection of biographical essays constituting a history of the federal courts in Arkansas, and said that Arnold has played an invaluable role by “examining a lot of the original source material in European archives.”
“I think he’s really made a tremendous contribution to the knowledge of that early period of time, from the late 1600s into the 1800s,” Ross said.
She noted that last November, the American Society for Legal History honored Arnold at a reception for his contributions to Arkansas and legal history. The 8th Circuit’s historical society, she said, is encouraging each district in the seven states in its jurisdiction to develop its history.
The 8th Circuit hears appeals from all the federal court districts in Arkansas, Missouri, Iowa, Nebraska, South Dakota, North Dakota and Minnesota.
Meanwhile, Rep. Tim Griffin, an Arkansas Republican, said last week through a spokesman that he intends to do “everything in my power” to ensure the passage of a bill he reintroduced in the current Congress to honor Arnold by naming the U.S. Bankruptcy courthouse in Little Rock in his honor. The unopposed measure is co-sponsored by Reps. Steve Womack, Rick Crawford and Tom Cotton, all Arkansas Republicans.
“He is a giant in the legal community, not just in Arkansas but around the country, on top of being one of the premier experts on colonial Arkansas history,” Griffin said about Arnold.
The designation would leave both federal courthouses in downtown Little Rock named after an Arnold. Both brothers’ portraits hang in the rotunda of the main courthouse at the corner of Capitol and Broadway, where Morris Arnold will retain an office, minus the staff, in the former fifth-floor chambers of the late U.S. District Judge Stephen Reasoner.
Morris Arnold said recently that he and his brother, who because of ailing health narrowly missed a nomination to the U.S. Supreme Court by President Bill Clinton, “were very close,” and that there was never any sibling rivalry, nor did he feel threatened by growing up in the shadow of an accomplished older brother.
Asked how they were different, Morris Arnold said, “I’m more voluble. He was more circumspect.”
When both Arnolds were on the 8th Circuit, the younger brother remembered, “I would talk to him every day. I would say, ‘I need some legal advice,’ and he would say, ‘Well, you’ve come to the right place.’”
Asked the best advice his older brother ever gave him, Morris Arnold quoted his brother as telling him, “When someone says something nice about you, believe it.”
On that positive note, Arnold described his time as a federal judge as “an extraordinarily good experience,” adding, “I have no complaints.”
Front Section, Pages 1 on 08/25/2013