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Marcia D. Greenberger

Marcia D. Greenberger

Posted: May 14, 2010 10:03 AM

The New Normal

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The nomination of Solicitor General Elena Kagan to replace Justice John Paul Stevens as an Associate Justice on the U.S. Supreme Court is historic. Never before have three women Justices sat on the Court at the same time, although it's been nearly thirty years since the now-retired Justice Sandra Day O'Connor broke through the glass ceiling to become the first woman Justice.

The great thing about a historic first is that it begins the process of transforming what came before into an outdated anachronism. For the Supreme Court, it means reaching a time when women Justices will no longer be viewed as tokens, even as interchangeable. When Justice O'Connor and Justice Ruth Bader Ginsburg served together on the Court, it was remarkable how often lawyers arguing cases before them confused the two and called each by the other's name -- even though they look nothing alike.

A third woman on the bench helps to change the equation even more. Having more women on the Court makes women's meaningful representation part of the normal routine -- rather than the exception to the rule.

Once confirmed, Elena Kagan will make history on the Court, as she has in other ways already. In 2003, she became the first woman to be named dean of Harvard Law School, and in 2009, she became the first woman confirmed as Solicitor General of the United States.

It's remarkable that these barriers were broken so recently. But each broken barrier demonstrates how much the country and its institutions, whether universities, government or the courts, gain from excellence and diversity. Justices O'Connor, Ginsburg and now Sotomayor on the Supreme Court have shown that the country is the better for having a Court that includes the best minds, both women and men, bringing their varied backgrounds and experiences to bear. Elena Kagan proved the same in the various positions she has held.

Elena Kagan's stellar track record as an academic, dean of one of the foremost law schools in the country, public servant, and now Supreme Court advocate for the nation, is impressive. Her tenure as Solicitor General has showcased her command of the law, formidable intellect and persuasive skills. These are qualities of great importance to a Justice on the Supreme Court. As Justice Ginsburg put it, women belong wherever decisions are being made -- in numbers that go beyond the first, the second, or the third -- and we all are the better for it.

Trailblazers like Elena Kagan open doors and change the equation. When Elena Kagan left her post as the first woman dean of Harvard Law School, Martha Minow was selected to take her place. These women are creating the new normal.