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8th Cir. Judge Almost Made It To SCOTUS Bench, Says Clinton Memo

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By Aditi Mukherji, JD on February 20, 2014 2:57 PM

People often don't know that Justice Stephen Breyer edged out a judge on the Eighth Circuit Court of Appeals for his spot on the U.S. Supreme Court.

It was 1994, and Justice Harry Blackmun announced his retirement. Just one year prior, President Bill Clinton appointed Justice Ruth Bader Ginsburg to the Court, instead of Stephen Breyer. His job interview apparently didn't go well because of a bike accident -- something he's known for getting into.

Newly uncovered documents from Diane Blair, a confidante of Hillary Clinton who documented the power couple's conversations, reveal there was actually a fair amount of drama involved in the decision-making process of Clinton's second SCOTUS appointment.

Richard Arnold's SCOTUS Chance

With a second opening on the Court, Clinton was dueling between his personal and political sides when considering Judge Richard Arnold, a fellow Arkansan on the Eighth Circuit Court of Appeals, against a second opportunity to appoint Breyer.

Though Clinton and Arnold weren't chummy, Arnold "had a national reputation, with some later calling him one the greatest judges never to have sat on the Supreme Court," CNN reports.

But Arnold had a few issues that the Clintons couldn't get past. First, there was a divorce with "messy allegations" in county divorce records that they feared would throw a wrench into Arnold's chances of getting confirmed.

Another issue was perceived nepotism: "Bill Clinton is furious about what has been done to Ark., how they've taken all the joy and happiness out of his victory, turned the state into the killing field -- this would restore their pride and happiness," Blair paraphrases him saying.

Cancer Prognosis Dashes Arnold's Consideration

Above all, it was Arnold's failing health that proved the death knell to his Supreme Court ambitions. Arnold had been diagnosed years previously with low-grade Hodgkin's lymphoma, and the cancer had produced tumors, spreading through his body, CNN reports.

Although he would have generally been able to function normally, a doctor told Clinton there was no way to say unequivocally that his medical issues would not interfere with his duties as a Supreme Court justice.

First Lady Hillary Clinton, who played a critical role in the decision-making process, was less subtle about the issue: Blair's memo says Hillary Clinton's greatest concern was that such an appointment would "make it seem [Clinton] is not taking this, his greatest legacy, seriously, if [he puts in] someone who may die in 5 years of less time."

"BC wouldn't even think about naming someone from Neb. or Iowa if they had possible cancer threat -- so why do it just because he knows the guy," writes Blair.

After hearing Arnold's medical prognosis from the doctor, Clinton later that day settled on Breyer. Though passed up for Ginsburg previously, Breyer made the cut the second time around and was easily confirmed. Maybe Clinton and Breyer have since bonded over their mutual love of officiating high-profile D.C. weddings?

Meanwhile, Arnold served on the Eighth Circuit until his death in 2004, outlasting the tenure of more than a few SCOTUS justices.

If only this whole story could be adapted into a Netflix original series ...

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