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.”
The problem of pretending “sex” and “gender” are indefinable terms bears heavily on decades of anti-discrimination jurisprudence. Reading further into Ginsburg’s opinion in U.S. v. Virginia, it is clear that her arguments for legal equality between the sexes are nonetheless premised on the idea that there are two separate sexes.
‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ to ‘promot[e] equal employment opportunity,’ to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women. (internal citations omitted)
The Supreme Court in the VMI case noted that men and women were different and noted further there are circumstances in which that difference can matter in law. Ginsburg’s point, and that of the six justices who signed on to her opinion, was that it did not matter in that case.
The court’s ruling was not that there was no difference between men and women, or that there was a difference, but no one could possibly know what it was. It was that men and women do have “inherent differences,” but that the state should not discriminate on that basis absent some “exceedingly persuasive justification.”
To say that the definitions of “man” and “woman” are unknowable absent some expert training in biology is to turn the whole precedent on its head. Justice Neil Gorsuch’s opinion in Bostock last year already degraded this principle, stretching the meaning of sex discrimination to cover discriminating against someone based on “traits or actions it would not have questioned in members of a different sex.” But even that reimagining of Title VII of the Civil Rights Act still hangs on the idea that the classifications known as “man” and “woman” exist and are knowable.
If sex is unknowable, how can a law against sex discrimination be enforced? If an element of the offense is literally indefinable, the law must fail under the “void for vagueness” doctrine.
First explained in Connally v. General Construction Co.in 1926 and upheld many times since, the doctrine requires that laws be clear if they are not to violate the due process clause. A law “must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Therefore, “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”
Until recently, no one would say that the definition of “woman” was something “so vague that men of common intelligence must necessarily guess at its meaning,” but Judge Jackson seems to disagree. What would this mean for our sex discrimination laws, where being unable to define “sex” makes it impossible to determine if the law even applies to a situation? If trial courts need to call expert “biologists” every time the subject of sex comes up, it is hard to see how justice can be done.
Fortunately, this is all a lie, not a genuine misunderstanding.
Judge Jackson, like Blackburn, is a woman, and she knows exactly what that means. Bowing down to the postmodernists’ mystery cult is something prominent people on the left deem politically necessary, but should a future Justice Jackson be called upon to decide a case in which a woman was paid less than a man for the same job, her recollection of the definition of “woman” will be magically restored.
But that does not solve the problem. The point of voiding vague laws is that the vagueness means they will be interpreted based on the whims of the state, not a neutral principle. Knowing what it means one moment and pretending not to the next introduces vagueness where none existed before, and with the same effect: the growth of arbitrary state power.
Ignoring facts leads to ignoring laws. Jackson’s misstep on this point undermined the idea that she would rule neutrally on politically sensitive matters and threatens to introduce a dangerous arbitrariness to American jurisprudence.