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Sotomayor hearings: One question the senators did not ask — how's her health?

July 16, 2009 | 11:54 am

In all the questioning of Sonia Sotomayor, there was no discussion of one of the more interesting aspects of her nomination: She may be the first person named to the court in recent times with a known, serious chronic illness such as diabetes.

One legal historian said the last such nomination he could immediately remember was Edwin M. Stanton, who was nominated by President Ulysses S. Grant in 1869 despite severe heart problems and asthma. He was confirmed but died before he could take his seat.

When she was diagnosed at age 8, Sotomayor’s life expectancy was expected to be seriously curtailed by the disease. Friends have said that diagnosis helped motivate her to accomplish big things early in life. Improvements in modern medicine have changed the outlook for those with diabetes. But for the last 47 years, Sotomayor has had to inject herself daily with insulin, knowing that if she did not maintain the right blood sugar level it could eventually be fatal.

Beyond this unusual life story of someone with what could be considered a serious disability making it to the threshold of the highest court, there is an interesting political story also simmering below the surface.
For at least the last two decades, one of the primary considerations in choosing a nominee, particularly for Republicans, has been the nominee's potential longevity on the court.

Clarence Thomas was but a sapling when he was nominated at age 43 in 1991. Chief Justice John Roberts was 50, while Samuel Alito was practically elderly at 55.

It has been less of a concern for Democrats, though even for them, anyone older than 60 seems to have been verboten. Of their last three nominees, Ruth Bader Ginsburg was 60, followed by Stephen Breyer, who was 55. Sotomayor is 55.

Based on age alone, the Republican nominees might serve on the court 22 more years than the Democrats. Depending on how future presidential elections go, that could make a huge difference on key issues such as abortion for a long time to come.

But with the nomination of Sotomayor, age alone may not be the only factor. Diabetes experts say that advances in the treatment of Type I diabetes mean that a victim of the disease can live to an advanced age if he or she manages blood sugar level well, and Sotomayor’s doctor says she has managed extremely well. But other experts say privately that it is almost impossible to manage perfectly.

It is unlikely, experts say, that Sotomayor will have the longevity of someone such as Justice John Paul Stevens, who is 89 and has been on the court for 34 years. Sotomayor’s seat could more quickly be filled by a Republican than someone without a chronic illness.

But other experts on the disease say it will be a valuable thing to have the perspective of such a person on the court. In 1999 the court decided that workers with treatable medical conditions, such as diabetes, were not disabled under the Americans with Disabilities Act and therefore could be fired because of their medical problems. The decision provoked an outcry, and last year Congress changed the law to protect people like Sotomayor.

-- Timothy M. Phelps

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