Judicial confirmation hearings are rarely illuminating. Since the introduction of television cameras, they mostly serve as a way for senators to say what they want their constituents to hear and for judicial nominees to say as little as possible. Nothing is learned, at least not on purpose.
But occasionally, we learn something by accident. At Judge Ketanji Brown Jackson’s confirmation hearing on Tuesday, Sen. Marsha Blackburn of Tennessee asked a seemingly innocuous question: “Can you provide a definition of the word ‘woman’?”
The nominee was unable to do so.
It might seem like a question that goes more to politics than to the job of a judge, but when sex discrimination is frequently before the court — including as recently as last year in Bostock v. Clayton County — it behooves a judge to have some inkling about what “sex” means.
Blackburn’s questioning began with a reference to the 1996 case of United States v. Virginia, in which the Supreme Court struck down the Virginia Military Institute’s policy of only admitting men by a 7-1 vote, with Justice Ruth Bader Ginsburg writing the opinion of the court. (You can watch the testimony here, beginning at about 13:10:00.) Blackburn quoted from that opinion, specifically to Ginsburg’s point that “[p]hysical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’”
“Do you agree with Justice Ginsburg,” Blackburn asked, “that there are physical differences between men and women that are enduring?”
It sounds like a softball — even young children know that there are physical differences between men and women. Jackson knows it, too. Everyone in that room knows it. But she declined to admit it.
“I am not familiar with that particular quote or case,” she said, which strains credulity. Had she committed that line to memory? Probably not. But to be unfamiliar with a landmark case, the most consequential majority opinion Justice Ginsburg ever authored? United States v. Virginia was surely a topic of discussion in 1996, Jackson’s third year of law school, where she was an editor of the Harvard Law Review. It beggars belief to say she was unfamiliar with it entirely.
The senator pressed on: “Do you interpret Justice Ginsburg’s meaning of ‘men and women’ as ‘male and female’?”
Judge Jackson demurred. “Again, because I don’t know the case, I don’t know how I interpret it.”
So Blackburn made it even simpler: “Can you provide a definition of the word ‘woman’?”
Again, Jackson pretended to not understand something that people have understood since the beginning of time.
“I can’t,” she said. “Not in this context, I’m not a biologist.”
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