Now That it Made History With Elena Kagan, the Senate Should Do Our Lower Courts Justice

The Senate did the right thing today by confirming Elena Kagan to be an Associate Justice of the United States Supreme Court. I was honored to testify in support at the Judiciary Committee hearings, given her outstanding qualifications, exceptional legal talents, and dedication to the rule of law. It has been a special source of pride and inspiration that our country will see this remarkable trailblazer -- the first woman Dean of Harvard Law School and United States Solicitor General -- make history once again by becoming only the fourth woman confirmed to the Supreme Court in its 221-year history. When the Court hears arguments the first Monday in October, moreover, three women will be sitting together on the nine-justice Supreme Court for the first time.

During this time of celebration, we have concrete evidence of how much progress the country has made and can make. But we cannot lose sight of how much more remains to be achieved. Only 220 of the more than 750 active federal appellate and trial court judges are women, and only 54 among them are women of color. There is only one Asian-American judge among the almost 160 active judges on the federal courts of appeal, and there are no Native American judges anywhere on the federal bench. This great imbalance coincides with a large number of vacancies on the federal courts that need to be filled. But a small, but determined, set of Senators are blocking the confirmation of 21 nominees for seats on the lower federal courts. And of the 21 nominees being blocked, two-thirds are women and/or racial or ethnic minorities.

The Supreme Court has the final say on how the Constitution and our laws are interpreted. But the lower courts try the cases and hear the appeals of the thousands upon thousands of people whose claims never make it to the Supreme Court. During her confirmation hearings, Elena Kagan testified that the courts are a unique forum where every party is treated equally -- and gave the example of Justice Thurgood Marshall, for whom she clerked, who was able to turn to the courts for justice in challenging racial inequality when other doors were slammed shut. Today, too many Americans are waiting needlessly for their day in court because there are too few judges in place to hear their claims. And the cruelest irony of all is that those who not only could dispense justice, but whose diverse perspectives and life experience would add to the quality of the justice system as a whole, are the very nominees whose confirmation votes are being blocked in the Senate. The courts are our nation's crowning achievement in offering equal justice for all -- but that promise is a hollow one if those who have been nominated as judges, especially those who would improve the diversity of those courts, are stuck at the back of a line that the Senate never allows to move.