Ginsburg's cancer prompts talk of who's next on Supreme Court

McClatchy NewspapersFebruary 5, 2009 

WASHINGTON — Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday for what apparently is early stage pancreatic cancer, the court's public information office announced.

The 75-year-old Ginsburg underwent the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She probably will remain in the hospital for seven to 10 days, according to her attending physician, Dr. Murray Brennan.

In theory, that schedule means Ginsburg, who's the court's only female justice, could return to the bench when oral arguments resume Feb. 23. In practice, the National Cancer Institute notes that most patients who undergo surgery for pancreatic cancer "need to rest at home for about a month."

More broadly, Ginsburg's diagnosis with a dangerous form of cancer underscores the fragility of the court's current makeup and the likelihood that, for one reason or another, it could change as early as this year.

"We obviously would love to have her stay on the court," Kathryn Kolbert, the president of People for the American Way, a liberal-leaning interest group, said in an interview. "She's probably the most liberal justice on the court, and she is also the only woman on the current court."

Even before Ginsburg's diagnosis became public, Kolbert added, "the new administration has obviously been thinking about who a new court nominee might be."

Simple demographics help explain why.

Five of the court's nine justices are at least 70 years old. A sixth, Justice David Souter, turns 70 this year. Several months after Souter's birthday, Justice John Paul Stevens turns 89.

None of the justices have hinted that they might retire this year, and Stevens remains vitally engaged during oral arguments even as he approaches the record that Oliver Wendell Holmes Jr. set for court longevity. Nonetheless, general aging, recurring illnesses and, in Souter's case, a reported dissatisfaction with Washington itself have contributed to a consensus thought that President Barack Obama could have several court vacancies to fill.

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a teenage mom . . . to understand what it's like to be poor or African-American or gay or disabled or old," Obama told Planned Parenthood in 2007. "And that's the criteria by which I'm going to be selecting my judges."

Ginsburg fit that bill for then-President Bill Clinton when he elevated her from the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court in 1993. The graduate of Cornell University and Columbia University Law School, who left Harvard Law School when her husband moved, previously had helped start the American Civil Liberties Union's Women's Rights Project.

On the Supreme Court, Ginsburg has hewed consistently, although not universally, to the left. She voted with the majority 75 percent of the time last term, according to an analysis by Scotusblog.com. This sounds like a lot, but no justice was in the majority less often than she was.

Still, Ginsburg has maintained good relations with her fellow opera fan, conservative Justice Antonin Scalia, and she's scored some notable victories, such as her opinion striking down male-only admissions restrictions governing the Virginia Military Institute.

"Generalizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description," Ginsburg wrote in the 1996 case, United States v. Virginia.

Ginsburg lost her own mother to cancer when she was in high school, and her husband, Martin, was treated for testicular cancer. She underwent surgery, chemotherapy and radiation treatments after her 1999 diagnosis with colorectal cancer.

Ginsburg reported having no symptoms prior to the discovery of a lesion during a routine annual checkup in January at the National Institutes of Health in Bethesda, Md. A scan found a small tumor, about 0.4 inch across, in the center of the pancreas, according to the court's public information office.

The pancreas is a gland in the abdomen that's about 6 inches long and is shaped, according to the National Cancer Institute, "like a flat pear." It produces insulin and other hormones that perform jobs throughout the body.

More than 37,000 U.S. residents were diagnosed with pancreatic cancer last year. That's far fewer than some other forms of cancer, but it's the fourth leading cause of cancer death in the U.S. because it's often diagnosed late. In its early stages, it often leaves no traces.

Last year, 34,290 U.S. residents died of pancreatic cancer, according to the National Cancer Institute.

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