Tuesday, March 29, 2022

Democrats, Judge Jackson, and the 'woman' problem

Democrats, Judge Jackson, and the 'woman' problem

DEMOCRATS, JUDGE JACKSON, AND THE 'WOMAN' PROBLEM. The important thing to remember about the now-infamous "define 'woman'" exchange between Sen. Marsha Blackburn and Biden Supreme Court nominee Ketanji Brown Jackson is that Blackburn telegraphed her pitch. It wasn't a gotcha question. It didn't come out of nowhere. No one should have been surprised.

On the opening day of Jackson's hearings before the Senate Judiciary Committee, a day mostly devoted to senators giving their opening statements, the Tennessee Republican told Jackson the topics that she, Blackburn, would question Jackson about the next day. "I've got a few areas that I'm going to want to delve a little bit further with you," Blackburn said. "Right now, when I talk to Tennesseans, one of the most important things that they bring up is the issue of parental rights, and wanting to be able to rear their children as they see fit."

Blackburn said parents are concerned about a "progressive agenda" in public schools. "Educators are allowing biological males to steal opportunities from female athletes in the name of progressivism," she said. "Some girls have been forced to share locker rooms with biological males. Rather than defending our girls, those in power are teaching them that their voices don't matter. They're being treated like second-class citizens, and Americans need a Supreme Court justice who will protect our children and will defend parents' constitutional right to decide what is best for their own kids."

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That's what Blackburn said on Day One of the hearings. So it should have been a surprise to no one that she raised the topic when it came her time to question Jackson on Day Two. Blackburn brought up a case called United States v. Virginia, in which the U.S. government sued Virginia over the Virginia Military Institute's male-only admissions policy. The Supreme Court struck down the policy in a 7-1 vote, and Blackburn quoted from the majority opinion written by liberal icon Justice Ruth Bader Ginsburg.

"Supposed 'inherent differences' are no longer accepted as a ground for race or national origin classifications," Ginsburg wrote. "Physical differences between men and women, however, are enduring: 'The two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both.'" Those were Ginsburg's words that Blackburn quoted. She then asked Jackson, "Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?"

Blackburn's question was fair, on point, and, given her opening remarks the day before, entirely predictable. But Jackson was not prepared.

"Senator, respectfully, I'm not familiar with that particular quote or case, so it's hard for me to comment as to whether — "

"Alright," said Blackburn. "I'd love to get your opinion on that. And you can submit that." That meant that Jackson, as all nominees do, could submit a written answer for the record later. Blackburn continued, "Do you interpret Justice Ginsburg's meaning of men and women as male and female?"

"Again, because I don't know the case, I don't know how I interpret it," Jackson answered. "I need to read the whole thing."

If you just stop there, it was an extraordinary exchange. United States v. Virginia, often known as the VMI case, was a very, very big deal. Some observers could not believe that Jackson, with her years at the highest level of the law, did not know the case. "It's truly a groundbreaking case, taught in every law school," said Mike Davis, head of the conservative Article III Project and a former chief counsel for nominations for the Senate Judiciary Committee. "She's either really not up to the job, or she's lying."

It was only at that point, after Blackburn had brought up VMI and Jackson had said she did not know the case, that Blackburn asked the question, "Can you provide a definition for the word 'woman'?" The question was asked in a particular context. The word "woman" or "women" appeared dozens of times in Ginsburg's opinion in the VMI case. Jumping back into the present, Blackburn had already mentioned biological males competing against biological females in college athletics. So it made sense that she would ask, "Can you provide a definition for the word 'woman'?"

"Can I provide a definition?" a somewhat surprised Jackson asked. "Yeah," said Blackburn. "I can't," said Jackson. "You can't?" asked Blackburn. "Not in this context," responded Jackson. "I'm not a biologist."

It was an amazing moment, and a terrible one for Jackson. You have to be a biologist to know what a woman is? Who would say that? Perhaps Jackson could see, in the seconds she had to consider the question, that the whole topic was a minefield for a nominee backed by the progressive legal community. What about all those transgender activists? What would they say? Better to punt and suggest that only a biologist can really know what a woman is.

Blackburn was ready for Jackson's dodge. "So you believe the meaning of the word 'woman' is so unclear and controversial that you can't give me a definition?" she asked. "Senator, in my work as a judge, what I do is I address disputes," Jackson explained. "If there's a dispute about a definition, people make arguments, and I look at the law, and I decide, so I'm not — "

"The fact that you can't give me a straight answer about something so fundamental as what a woman is underscores the danger of the kind of progressive education that we are hearing about," Blackburn responded. Her point was made.

Mike Davis, who has taken part in a lot of confirmations, wondered why Jackson didn't say something like this: "Of course I understand what the word 'woman' means in everyday life and meaning, but there are legal issues that could come before the court, Title IX or Title VII cases, so I just have to be careful." Instead, Jackson balked at giving any definition of "woman" and suggested that only academically trained experts could do so.

Jackson's hearings are over, but the exchange will resonate. The issue of wokeism is becoming a bigger and bigger deal for Republican voters, and the fact that President Joe Biden's nominee would not answer Blackburn's straightforward questions will be difficult for Democrats to defend in this year's midterm elections. And that is before Republicans bring up the problem of Jackson's sentencing of child pornography defendants.

There are 10 days left before the Judiciary Committee votes on the Jackson nomination, and then still more time before the full Senate votes. There is no indication any Democrats have wavered in support of Jackson — it's hard to imagine what it would take for that to happen — but it also seems true that Republicans are more and more troubled by what they have seen.


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