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The remarkable bad faith involved in the ‘what is a woman’ attack

Sen. Marsha Blackburn (R-Tenn.) asked Judge Ketanji Brown Jackson for her definition of “woman” at the March 22 confirmation hearing. (Video: The Washington Post)

One of the realizations that emerge once you have children is that things we understand intuitively can be hard to articulate when asked. Emotions are classic examples, certainly, but even things like colors involve simply introducing more and more refined demonstrations of the category. As philosophers will tell us, language is necessarily imprecise, but it’s our only way of describing the world.

So I ask you, in that context: What is a woman?

You know intuitively, certainly. And, depending on how much time you want to spend on it, you can come up with a broadly bounded answer. But then uncertainty creeps in. When does womanhood begin? 13? 18? Is it dependent on the presence of body parts like a uterus? Does it derive from hormone levels? Chromosomal markers? There’s something called Turner syndrome in which people have only one X chromosome. Are such individuals women?

It seems a simple question, and it can be answered simply, but it can also be complicated. “Red” is the absorption of a certain wavelength of light. It is also the color of hearts on Valentine’s Day. What definition do you want?

Sometimes, answers depend very specifically on why the question is being asked. As in legal cases. And that’s why the effort by Sen. Marsha Blackburn (R-Tenn.) to pin down President Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, on her definition of “woman” at the Senate Judiciary Committee’s confirmation hearing on Tuesday was such an obvious bad-faith ploy.

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In the hours since Blackburn posed the question on Tuesday night, it has become a celebrated example on the political right of how beholden Jackson purportedly is to leftist subjectivism. Fox News sent out a push alert about Jackson’s response; the exchange was one of the few things about the hearing highlighted on the network’s website on Wednesday morning. A phalanx of right-wing voices pointed to Jackson’s response as disqualifying or a component of doom for any Democrats who might want to support her nomination.

It was a cascade of bad faith, from Blackburn’s question to the coverage of the response. So it’s worth doing two things. First, explaining why the question — particularly in the context of the moment — was so bad and, second, explaining how this tactic has gained ground in recent months.

First, the context.

Blackburn has leaned into her role of elevating any sketchy anti-Jackson talking point that emerges in right-wing media. Her question about womanhood came at the end of a section that began with an obvious attempt to create some guilt-by-association with — wait for it — a D.C.-area private school.

Jackson sits on the board of Georgetown Day School, something that served as a jumping-off point for efforts to intertwine her philosophy with “critical race theory.” But Blackburn took it in a different direction.

“With Georgetown Day School, I found it astounding that it teaches kindergartners — 5-year-old children, and I’ve got grandchildren — and they teach them that they can choose their gender,” Blackburn claimed. “So is this what you were praising when you applauded the, and I’m quoting you, ‘transformative power of Georgetown Day School’s progressive education’? Do you agree that our schools should teach children that they can choose their gender?”

See that switch? Jackson praised the school and, so, she’s necessarily praising every decision Blackburn alleges it has made. Alleges; a reporter’s efforts to determine whether this is true came up short, including after asking Blackburn’s office.

“Senator, I’m not remembering exactly what quote you’re referencing,” Jackson replied, “but Georgetown Day School is —”

Blackburn interrupted. “It was in a book and you gave the quote,” she said. After another brief back-and-forth, Blackburn asked Jackson if she agreed that “schools should teach children that they can choose their gender?” Jackson declined to answer.

So Blackburn continued on the same path.

U. S. v. Virginia, the Supreme Court struck down [Virginia Military Institute’s] male-only admission policy,” she said. “Writing for the majority, Justice Ginsburg stated, ‘Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. 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.’ Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?”

For what it’s worth, this is also misleading. Ginsburg did write that “physical differences” are “enduring” in that 1996 decision, but everything that follows in the quote Blackburn offered was Ginsburg quoting another decision, the 1946 case Ballard v. U.S.

Jackson's response, though, is very important.

“Senator, respectfully,” she said, “I am not familiar with that particular quote or case, so it’s hard for me to comment as to whether or not —” Again interrupted.

What matters here is that the argument being made by Ginsburg was specific to the case at hand. Nor was Ginsburg adjudicating the definitions of “man” and “woman,” but, rather, the difference in access that our general understanding of those terms (particularly in 1996) meant in the context of the exclusions in place at VMI.

Then we come to the part that has so excited the right.

“I’d love to get your opinion on that, and you can submit that,” 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’d interpret it,” Jackson said. “I’d need to read the whole thing.”

“Okay,” Blackburn said. “Can you provide a definition for the word ‘woman’?”

“Can I provide a definition?” Jackson replied, clearly bemused. “No. I can't.”

“You can’t?” Blackburn replied.

“Not in this context,” Jackson said. “I’m not a biologist.”

“So you think the meaning of the word woman is so unclear and controversial that you can’t give me a definition?” Blackburn said, obviously framing Jackson’s response unfairly.

“Senator, in my work as a judge, what I do is I address disputes,” Jackson said. “If there’s a dispute about a definition, people make arguments and I look at the law and I decide. So I’m not —”

“Well, the fact that you can’t give me a straight answer” — here Blackburn offered a wry chuckle — “about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about,” the senator said.

That’s the point. Set someone up for failure and then point out that they failed. What answer was Blackburn expecting? This question was one in a battery aimed solely at tripping Jackson up; Blackburn then transitioned to a planned question about transgender athletes in sports.

That brings us to our second point, about this tactic. We saw the same thing in January when Sen. Ted Cruz (R-Tex.), eager to redeem himself after having the temerity to describe those who participated in the attack at the Capitol as “terrorists,” pressed federal law enforcement officials on a man named Ray Epps.

Cruz asked pointed questions about the investigation into the attack on the U.S. Capitol and about Epps — questions that he knew, as a senator, they would almost certainly decline to answer. They declined. Cruz and Fox News popped the champagne.

In that case, the setup was that law enforcement would not opine on ongoing cases, out of concern that they might taint any prosecution or tip off any targets. In the case of Blackburn’s question to Jackson, the setup was much looser: There was no good answer. (I would certainly like to hear Blackburn’s off-the-cuff response to the same question.) Any answer Jackson gave would be picked over as incomplete or revelatory. It was the functional equivalent of the infamous query: “When did you stop beating your wife?”

What’s most important is that we literally learned nothing new about Jackson from the exchange. Her declination to answer is not informative; it is expected. All that was gained was a way to disparage her in exactly the way that Blackburn did, pivoting from her non-answer to how she represented “the dangers of the kind of progressive education” — tying back to her prepared commentary after posing the Georgetown Day School question. In fact, Blackburn even appeared to be reading from notes as she intoned about those dangers, suggesting that she was ready for Jackson’s response even if Jackson couldn’t be.

This is politics. This is a political process, and it is a political decision. But it’s still worth noting when something is simply political and nothing more.

Ketanji Brown Jackson

The latest: Ketanji Brown Jackson will be sworn in as the Supreme Court’s first Black female justice at noon Eastern time on June 30, just minutes after her mentor Justice Stephen G. Breyer makes his retirement official. It is the first time the Supreme Court will have four female justices among its nine members.

The votes: The Senate voted 53-to-47 to confirm Judge Ketanji Brown Jackson to the Supreme Court, with three Republican senators joining every Democratic and independent senator. Here’s how each senator voted on Jackson’s nomination.

The nominee: The president named Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit, as his first Supreme Court nominee. She is set be the first Black woman justice in the court’s history.

What it means: The Democrats will succeed in their efforts to replace the oldest of three liberal justices on and further diversify the Supreme Court ahead of the 2022 midterm elections.