The Kagan Confirmation: Its meaning for women and the courts.

With the Kagan confirmation, the U.S. Supreme Court sets an example for all the states to achieve...

By Judge Betty Roberts. Judge Roberts served as the 83rd Associate Justice of the Oregon Supreme Court from 1982 to 1986. In 1977, she became the first woman to serve on the Oregon Court of Appeals. She is the author of the memoir, “With Grit and by Grace: Breaking Trails in Politics and Law” published by Oregon State University Press. Learn more at

The Senate Judiciary Committee voted 13-6 to approved Elena Kagan’s nomination to the Supreme Court. The full Senate will discuss and vote later this month or in August.

Far more interesting is what her appointment means for the future of our courts. Her confirmation will put three women justices on the U.S. Supreme Court for the first time in history, making women judges one-third of the court. This is bound to have an influence on other courts.

Statistics show that in all the state courts combined women make up 26 percent of all judges. The state with the highest number is Vermont with 41 percent, and the lowest number is Idaho and South Dakota with 13 percent each. Oregon is at 32 percent.

With the Kagan confirmation, the U.S. Supreme Court sets an example for all the states to achieve, at least, 33 percent, particularly at the highest appellate court level where the overall figure is only 29 percent with some states having no woman serving on their highest courts.

What a difference from my experience when I went on the Oregon Court of Appeals in 1977 as the sixth then-sitting woman judge in all of Oregon. The dramatic difference is explained primarily by the number of women who were entering law school in the 1970s and their rapid growth until now when the women outnumber the men. These women created a pool of qualified candidates for judges, and have shown an amazing expertise for both the practice of law and for being good judges.

The most often asked question about women judges is whether they rule differently than men.

The short answer is there is not much difference in outcome but women have a different approach because of their different life experiences, and those experiences get worked into the framework of the law. In working on the appellate courts of Oregon I found discussing my point of view in conferences and with judges individually, I had more influence in how a case was written while rarely changing the outcome of a case, although that happened a few times. And I found I was considered a consensus builder among my male colleagues.

Women were once thought of as not being “tough enough” to be a judge, but that notion has almost disappeared as judges and the public realize that justice is the goal of judging, not how tough a judge can be. Sometimes we need to be reminded that the symbol of justice is a woman.

Elena Kagan’s nomination and ultimate confirmation should make us all proud of the achievements of women as we go forward in making our courts more reflective of our diverse society.

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    I would feel better about Kagan if she HAD NOT written that Friend of the Court brief in SUPPORT of Monsanto, regarding the GM Alfalfa case. To me, I am becoming a cynical progressive as this administration seems to be as cozy with Corporate interests as the previous.

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    This article is a good reminder of what Lady Justice is a symbol for: the fair and equal administration of the law, without corruption, avarice, prejudice, or favor

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    Thank you Justice Roberts for reminding us of how far the courts have come and how far we still have to go. Oregon is lucky to have your experiences to build on and increase opportunities for women to serve.

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    Few Oregonians have earned the endearment we have toward Betty Roberts- it is a shame she was not elected Governor.

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    Thank you, Judge Roberts, for joining us here at BlueOregon.

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    Dear Justice Roberts, it is an honor to have you join us here. You are a true trailblazer for the justice system in our state.

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    Why pray tell does the make-up of the Supreme Court suggest or dictate the optimal make-up of state courts? What is so magical about 33%. To take this statement at face value one would also suggest that the only jurists worthy of sitting at state court levels would be recipients of their juris doctorates from Harvard or Yale. Stanford and HAstings grads need not apply. Oregon grads are clearly out of the hunt.

    The one thing this nomination and almost certain confirmation means is that like the previuos president, winning has its cnsequences when it comes to choosing replacements for the highest court in the land.

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    For more of Justice Roberts's insights into her experiences in Oregon law and politics I would strongly recommend reading her memoir, With Grit and By Gracë published by Oregon State University Press and available on (and I assume still some local bookstores).

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    It is notable even here that conscious efforts at inclusion of the talents, intelligence, and perspective of the majority of citizenry, women, into the judiciary are propagandized in right wing talking points as "quotas."

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      Gosh bill, while no frothing-at-the-mouth liber oops progressive; I'm certainly no conservative.

      even a cursory read of justice Roberts post shows, "With the Kagan confirmation, the U.S. Supreme Court sets an example for all the states to achieve, at least, 33 percent,...". Sounds like a mandate to me.

      And YOU were the one to use the "q" word.

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    No, Kari, Jack Roberts and I are not related, nor am I related to any other Roberts, but Jack is a former Labor Commissioner and a good guy. I like the plug he gave my book, "With Grit and By Grace." Many men have told me how much they like the book, primarily for the history of an extraordinary era in state government. And, yes, the book is in local book stores.

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