Is Sotomayor's Diabetes Fair Game?

By Conor Clarke

When I saw this headline in my RSS reader -- "One question the senators did not ask: how's her health?" -- I assumed it was going to be a story about how those gosh-darn ungentlemanly career politicians failed to ask Sonia Sotomayor about her recently broken ankle. But it isn't. It's a story about how the senators failed to inquire after Sotomayor's diabetes, which she has had since the age of eight. And the article is not concerned with kindness, but miserly moral mathematics: because it is unlikely "that Sotomayor will have the longevity of someone such as Justice John Paul Stevens," Sotomayor’s "seat could more quickly be filled by a Republican than someone without a chronic illness."

Should they have asked about this?

Well, I do think age and health are more obviously reasonable concerns than race or gender, although as a matter of manners it does seem a bit indecorous to bring these things up at a public hearing. (The considerations that get tossed around in Obama's head before making a choice are another matter.) And I'm not quite sure what any Senator would have asked. ("When are you going to die?" Hardly.) Neither party has much reason to bring it up.

That said, I do think there are two important considerations here. The first is the obvious point that we should be concerned not just with quantity (years served) but with quality (effective judging), and adjust expectations appropriately. Second, it seems to me that if we are going to be explicitly concerned with the health of nominees, we should logically extend this concern to many other uncomfortable subjects. We should never nominate a smoker (Rehnquist). Or we should ask about exercise habits. Or we should realize that women tend to lead longer lives.