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Ginsburg's Illness Puts Focus on the Choices Ahead for Obama

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The Supreme Court says Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer. Video by AP

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Several constitutional scholars who follow judicial appointments said they would be shocked if Obama did not fill the next high court vacancy from the ranks of female judges. When Ginsburg took the bench in 1993, joining Sandra Day O'Connor as the court's second woman, colleagues marked the occasion by ordering court officials to build a ladies' restroom in the judicial robing area, "its size precisely the same as the men's," Ginsburg recalled later.

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Ginsburg bemoaned her status as the court's only female justice in the same 2006 speech, saying, "Since Justice O'Connor's retirement . . . I have been all alone in my corner of the bench."

Marcia Greenberger, co-president of the National Women's Law Center, pointed out yesterday that O'Connor had expressed disappointment two years ago when she was not replaced with a female judge, because it amounted to a step back for women's presence on the court.

"The concept in this day and age of having only one female justice out of nine is extremely problematic and hurts the ability of the court to understand how the law applies in a real-life context," Greenberger said.

"It matters a great deal who's on the court," Resnik said. "Ginsburg is committed to the idea that it's important for women and men to be equal participants, and equality on the court does not mean creating a set of one." She said Ginsburg's legacy is that of "a person who opened doors for others."

At the White House, advisers already had begun drafting a short list for the court in case one of the several aging justices decided to retire this summer. Speculation has been that the list includes Harvard Law School Dean Elena Kagan, who has been nominated to serve as solicitor general; Judge Sonia Sotomayor of the Court of Appeals for the 2nd Circuit; Judge Diane Wood of the 7th Circuit; and Stanford University law professor Kathleen M. Sullivan.

During his eight years in office, President Bill Clinton charted a middle course in filling court vacancies, generally selecting jurists with a moderate approach and avoiding messy nomination fights on Capitol Hill.

Even before the election, left-leaning interest groups hungry to change the balance of the court pressed Obama to nominate judges who espouse progressive social views.

Conservative activists and interest groups also are gearing up for nomination fights and already have attacked some of Obama's nominees for Justice Department posts as overly liberal on abortion, capital punishment and pornography.

In an early sign of the new administration's legal strategy, the acting solicitor general yesterday asked the Supreme Court to dismiss a case concerning the Environmental Protection Agency's 2005 rule regulating mercury emissions from power plants. Last fall, the Bush administration asked the court to overturn a federal appeals court decision striking down the rule as illegal.

Frank O'Donnell, who heads the advocacy group Clean Air Watch, said the motion underscores how Obama is moving quickly to reverse Bush's environmental policies.

"Today's action shows the Obama administration -- unlike its predecessor -- won't be a pawn of the coal-burning electric power industry," O'Donnell said.

Staff writers Rob Stein and Juliet Eilperin contributed to this report.


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