Ginsburg's Illness Puts Focus on Choices Ahead for Obama

By Carrie Johnson
Washington Post Staff Writer
Saturday, February 7, 2009

The announcement this week that Supreme Court Justice Ruth Bader Ginsburg had been diagnosed with pancreatic cancer served as an early reminder of the weighty judicial choices ahead for President Obama, who must fill urgent vacancies on appeals courts and federal trial courts as well as potential seats on the nation's highest court.

Ginsburg, 75, had surgery Thursday at the Memorial Sloan-Kettering Cancer Center in New York to remove a small cancerous tumor from the center of her pancreas. Court spokeswoman Kathy Arberg said yesterday that Ginsburg intends to come back to the court in time for three days of oral arguments beginning Feb. 23.

Ginsburg's plan to return so quickly signals that she is recovering well from the surgery and that she probably avoided a more extensive type of operation that is sometimes needed for pancreatic tumors, said Sarah Thayer, a surgeon at Massachusetts General Hospital.

"If she's going back already, you know she's likely doing fairly well," Thayer said. She did not have specific knowledge about Ginsburg's case.

Ginsburg may require four to six weeks of chemotherapy and possibly radiation, but many patients can work while undergoing the treatment, Thayer added.

Word of the justice's illness, however, resurrected discussions from the campaign about who Obama should appoint should there be a vacancy at the Supreme Court.

Ginsburg could decide to step aside eventually of her own accord or remain on the bench while fighting her illness, as did the late Chief Justice William H. Rehnquist.

It is also possible that another justice could announce a departure after the court completes its work in June.

Friends of Justice David H. Souter, 69, have said he is weary of living in Washington and eager to return to the scholarly life he once led in New Hampshire, though he has offered no public sign of that. Justice John Paul Stevens, the eldest of the justices at 88, already has hired clerks for the next term, an indication that he has the interest and the energy to continue on the job.

Though frail in appearance, Ginsburg has a powerful will and physical stamina, fueled by regular workouts at the court gym, water skiing and horseback riding. A decade ago, she did not miss a single day of court proceedings after an operation and therapy for colon cancer. Before her new bout with cancer, Ginsburg told audiences that she hoped to follow the pattern set by Louis Brandeis, who arrived at the court at age 60 and served for more than two decades, until age 83.

For now, Ginsburg is making a few small concessions to pancreatic cancer, which has a long-term prognosis as among the deadliest forms of the disease. She asked Georgetown University law professor Wendy Webster Williams to deliver a keynote address next week at a Rutgers University conference on women who have reshaped American law. Williams will read remarks that Ginsburg has prepared.

In an interview yesterday, Yale Law School professor Judith Resnik predicted that Ginsburg will continue to be an active member of the court, to which she is intensely devoted.

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.

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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