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

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 BettyRoberts.net

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.