Saturday, February 07, 2009

Ginsberg's cancer brings up speculation of Obama court make-up

Two days ago, Supreme Court Justice Ruth Bader Ginsburg went into surgery, after being diagnosed with pancreatic cancer. From MSNBC News:

Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.

In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment. The only woman on the court, she has been a justice since 1993.

The pancreatic cancer was discovered during a routine, annual exam late last month at the National Institutes of Health in Bethesda, Md.

If there was one issue that was overlooked in the 2008 elections, it was the Supreme Court. Ginsburg is just one of the four justices in the Court's liberal wing--with justices Stephen Breyer, David Souter, and John Paul Stevens being the other three. Ginsburg is 76 years old, and has told law clerks that she intends on serving the Court until her 80s. If Ginsburg's cancer forces her to step down from the court, it will be Barack Obama--and not John McCain--that would be responsible for selecting her replacement. If John McCain were sitting in the Oval Office, he could replace one of the four liberal justices with a conservative justice, forcing the Court into a more conservative stance. Remember, Ginsburg is 76 years old, Breyer is 71, Souter is 70, and Stevens is 89 years old! Compared to the Courts conservative justices ages where justices Anthony Kennedy is 73, Samuel Alito is 59, Chief Justice John Roberts is 54 years old, Justice Antonin Scalia is 73 years old, and Justice Clarence Thomas is 61 years old, three of the conservative justices are still below retirement age. We are going to see at least one Supreme Court justice being replace over the next four years. I'm guessing it will be John Paul Stevens, considering he is currently 89 years old--he will be 93 years old at the end of Obama's first term. Of course this is pretty much a given. After that, we've got a number of justices in their 70s--Ginsburg, Breyer, Souter, Kennedy, and Scalia. There may be retirements from any of them over the next eight years. This is why it was so important for the Democrats to take control of the White House, to maintain the ideological status quo of this Court.

Which brings us to the speculation of who Obama may choose for his first Supreme Court justice selection? According to this MSNBC News story:

President Barack Obama took office with a strong prospect that his first four years in office could bring two or more openings on the high court, though he may well be replacing aging liberal justices with younger ones.

Barring the unexpected, the court's balance of power — four on the left, four on the right, one in the middle leaning right [Kennedy is the swing vote] — is not likely to change significantly.


Chances are, Obama's first appointment will be a woman — especially if it's to take the place of Ginsburg, the only woman on the court. And, like Ginsburg, she will be liberal leaning.

Like every sitting justice, she also probably will be a federal appeals court judge. Obama has a number of options along those lines, including these five:

* Judge Diane Wood of the 7th U.S. Circuit Court of Appeals in Chicago.
* Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.
* Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York.
* Pam Karlan, a law professor at Stanford University.
* Judge Margaret McKeown of the 9th Circuit in San Francisco.

Either Wardlaw or Sotomayor would be the court's first Hispanic justice.

So it will certainly be interesting to see who Obama may select for his first appointment. A first Hispanic judge would be an impressive achievement to add to Obama's presidential legacy. But the important factor here is that the Court will maintain its balance between the liberal and conservative ideologies. Obama will select at least one justice in the four, or eight, years he will be president. It is just a matter of time.

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