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Sotomayor's Medical History Sparks Wider Debate

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With President Obama's Supreme Court choice expected within weeks, the vetting process for prospective candidates has grown more intense. Judicial rulings, legal papers, public statements and financial records all are being pored over with eagle eyes. So too is a far more sensitive matter: medical records.

The health of a Supreme Court candidate is, naturally, a touchy subject, falling in a gray area that includes deeply private information. In recent administrations, however, it has become a focal point of the vetting deliberations, with lifespan moving up alongside jurisprudence as a criteria for a nominee.

As President Obama approaches his first Supreme Court appointment, the question of how much scrutiny he should give to a candidate's health could rise to the surface once more.

A frontrunner for the post, Judge Sonia Sotomayor of U. S. Court of Appeals for the Second Circuit, is a Type One diabetic. It is one of the more compelling aspects to an already compelling biography. And while hardly a debilitating disease -- indeed, recent medical advancements have made it quite manageable to live with -- there remain enough late-in-life health implications to have sparked debate in legal, political and medical circles. Just how relevant are medical issues to Sotomayor's or any other potential Supreme Court nomination?

"It is obligatory [to look at this]" said Jeffrey Toobin, a legal analyst for CNN and author of "The Nine: Inside The Secret World of the Supreme Court." "The issue of duration of service for a Supreme Court nominee is critical to any president, and thus health and medical issues are very much at the forefront of their considerations... It would be irresponsible for any president not to make the health of the nominee a major subject of concern, because presidents want decades of service from their nominees."

Added another political operative who has worked on judicial nominations in the past: "I don't even think it is very sensitive. I think it is just obvious.... It is part of who we are. And so I think you find that there is almost in this day and age, there is almost no area of inquiry that is out of bounds."

Not everyone believes that medical conditions of prospective candidates should be considered so critically in the vetting process. George Dargo, a professor of law at New England Law in Boston, noted that retiring Justice David Souter serves as evidence that gaming out how a Supreme Court pick will fare is an imprecise art. "I believe that this should not be a factor," he said. "There is one constant in Supreme Court history, and that is the inconstancy of the appointees... President Obama may want to appoint someone who will be there for at least a generation, but he might be disappointed."

Moreover, few, if any, in the medical profession view Sotomayor's diabetes as a major disqualifier. Far from it, many experts argue that there is a stigma attached to Type One diabetes that doesn't exist with other conditions. A history of coronary disease, high blood pressure, Crohn's Disease or Lupus can present far more difficult medical quandaries. The vast majority of the roughly 24 million people who suffer from diabetes live long and fruitful lives, with a list of political luminaries that includes former New York City mayor Fiorello LaGuardia, Mikhail Gorbachev and Menachem Begin.

"The advancements for management of type one diabetes have been just amazing over the last two decades because of the advent of insulin pumps and the ability of people to measure their glucose levels at home," said Dr. Paul Robertson, President of Medicine & Science at the American Diabetes Association. "We're talking a whole different ball game now in terms of how well patients can do; what their longevity is like and how well they can function. Many of the pro athletes as you may already know have type one diabetes and they function perfectly well."

That said, the complications faced by Type One diabetics can be immense. According to Joana Casas of the Juvenile Diabetes Research Foundation, patients run a greater risk of having kidney disease, heart disease, stroke and nerve damage. "The average life expectancy for people with Type One is lowered by an average of ten years," she added.

And with there being no time or term limit to a position on the Court, some legal observers wonder whether this could end up complicating the likelihood of her appointment.

"I myself am a Type 2 diabetic for over three decades," said Howard Ball, author of "The Supreme Court in the Intimate Lives of Americans" and a political science professor at the University of Vermont. "It calls for vigilance daily... I am sure that the judge [Sotomayor] has developed such a regimen over the years... This certainly make Obama's decision a very political one because, as you know, the president wants to select someone who will be on the court for decades doing the right thing in cases and controversies. I would suspect that she will not become a viable possibility for that reason, although I may be wrong."

Sotomayor has been open about her diabetes in the past, noting that when she was diagnosed at he age of eight, it foiled her hopes of becoming an investigative detective like her heroine, Nancy Drew. Her office, however, did not return requests from comment. Sources close to the Obama White House say they are, as expected, taking each candidate's medical history into consideration. But officials refused to comment for this article.

Health concerns have factored into previous Supreme Court nominations, often in complicated and rather secretive ways. The most obvious example of medical issues affecting an appointment, Toobin argued, was Richard Arnold, an Arkansas federal appeals court judge who President Bill Clinton desperately wanted to appoint to the bench before medical tests showed a reemergence of cancerous tumors in his body. A weeping Clinton decided against the appointment and ultimately settled on Justice Stephen Breyer. Roughly ten years later, Arnold died due to complications with his treatment.

There are other historical anecdotes, though far less gripping. David Atkinson, author of "Leaving the Bench," hypothesizes that Justice Charles Whittaker likely had some medical problems before President Eisenhower appointed him to the Court. He ended up suffering a nervous breakdown on the bench in 1962 and was granted his retirement soon thereafter. Horace Lurton, William Taft's 65-year-old nominee, promised to "hit the ground running," Atkinson noted. But "he lasted only a very short time before he became very ill and died."

Mainly, however, health concerns arise during the end, not the beginning, of a Justice's tenure. The esteemed Thurgood Marshall, for one, was suffering from a bad heart, deafness and glaucoma by the time he retired at age 82. Justice William Brennan, as well, admitted that he ended his career not quite as mentally astute as when he started. Currently, the Court has one member who is suspected of suffering from epilepsy -- Chief Justice John Roberts -- and another recovering from surgery for cancer -- Justice Ruth Bader Ginsberg.

With this backdrop in mind, Atkinson argues that Justices and nominees should be more forthcoming with medical information.

"I've been making this case for a long time," he said. "Presidents, since Eisenhower, have been very good at this. The Justices have not been so good."

With Contributing Reporting By Susan Crile


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