Fordham Law

Ginsburg's Cancer Raises Specter of Early Obama Appointment to Court

Thomas H. Lee in Congressional Quarterly, February 05, 2009

Justice Ruth Bader Ginsburg's pancreatic cancer surgery Thursday raises the specter of a potential Supreme Court appointment earlier in the Obama administration than expected.

Ginsburg, who will turn 76 next month, was treated at Memorial Sloan-Kettering Cancer Center in New York, the court said in a statement. The tumor was discovered in January following a routine checkup.

She is expected to remain hospitalized for seven to 10 days. Although the justices are not scheduled to hear arguments again until Feb. 23, an extended absence or retirement could lead to votes deadlocked at 4-4, which results in the lower court's judgment being upheld.

In the past, the justices have opted to delay consideration of particularly controversial matters until a full complement of nine is available to hear the case.

Court's Balance Ginsburg, appointed by President Bill Clinton in 1993, is a reliable member of the Supreme Court's liberal wing and is currently the court's sole female justice.

There has been widespread speculation that Ginsburg or other court liberals, such as John Paul Stevens, who turns 89 this year, or David H. Souter, might retire now that a Democrat is in the White House.

But no vacancy was expected until the end of the Supreme Court's term at the earliest. The White House and Justice Department personnel who would handle a high court nomination have either just arrived at their jobs or are awaiting confirmation.

If Ginsburg did leave the court, replacing her with another liberal would not change the ideological balance. Justice Anthony M. Kennedy stands in the middle between four liberals and four conservatives.

A bigger confirmation battle would result if Obama had occasion to replace one of the court's conservatives. But the White House would enter any confirmation fight in a strong position, given the size of the majority that Democrats enjoy in the Senate.

As a justice, Ginsburg is considered more of a centrist than some of the liberals in the past, such as William J. Brennan Jr. or William O. Douglas.

"She's actually a very incremental and cautious judge," said Fordham University law professor Tom Lee, who clerked for Souter in the October 2001 term. "She doesn't write these opinions that are broad-brush like a Brennan or a Douglas or [an Antonin] Scalia, even. She's a liberal, but I think she's more of a cautious and incremental liberal."

Dr. Mark Zalupski, a medical oncologist at the University of Michigan who is not involved in Ginsburg's treatment, said that doctors typically wouldn't decide whether to recommend further treatment, such as chemotherapy and radiation, until after they study the tumor, the surrounding area in the pancreas and the lymph nodes.

Ginsburg was treated for colorectal cancer in 1999. Her frail appearance since sparked speculation about her health and potential retirement, though she has remained physically vigorous and even exercises at the court.