Judge Ketanji Brown Jackson has an impressive résumé and appeared generally sharp and diplomatic in her time before the Senate Judiciary Committee. I did not watch much of her confirmation hearings because I figured she was a shoo-in, between the golden résumé—double Harvard, Supreme Court clerkship, and district and appellate judicial experience—and the diversity card. Plus, the stakes are low. Her appointment would not change the balance of the Court, as she is slated to replace the reliably liberal Stephen Breyer.
Republicans on the Senate Judiciary Committee acted tougher than expected, perhaps because they figured the fix was already in, and they’re still steamed about Brett Kavanaugh’s confirmation hearings in 2018. In addition to speechifying about how other nominees were treated, the Republicans’ most common line of attack addressed culture war issues. There are many important legal issues relevant to the Supreme Court intertwined with the culture war, including abortion, gay marriage, and the place of transgender persons in college and high school sports.
Senator Marsha Blackburn (R-Tenn.) asked the nominee to define “woman.” Judge Jackson’s response was noncommittal: “I’m not a biologist.” Gotcha!
That said, could you define woman? Most people would say “adult female” and feel proud of themselves for doing so, but this is just a tautology, as it elides the question of what the definition of female is.
One could also, like the nominee, punt the question to science, but when science gets involved in classification, it’s not really science. Science can tell you that a person has XX or XY chromosomes (or that another person has XYY or X0), but whatever labels science attaches to any of those facts is not science per se.
The truth is most of us “know a woman when we see one,” and understand this long before we learn about chromosomes in high school biology and without being able to give a pithy definition. There are many other elemental concepts that are hard to define, but we know through their socially embedded, traditional meanings. This includes words such as justice, evil, love, good, bad, friendship, family, hero, coward, and the like.
The real issue here is not the definition of a woman, but the consequences of this status. For traditionalists and conservatives, sex is not merely a question of your biology or your organs, but of your social role and responsibilities. These expectations were codified in Western chivalry, which took a fact—men’s greater physical strength—and put it in the service of protection of women and society more generally.
This is why, even now, most of us in the West feel a protective urge toward the women and children fleeing Ukraine, while feeling more than a little contempt for the legions of military-aged men who fled Syria and Afghanistan in recent years. Physical courage is expected of a man, but not required of a woman. There were, until recently, many similar rules and expectations like this for both men and women.
In contrast to this tradition, there is feminism, which says all of these rules and restrictions are tools of oppression. Every woman not only can but should define herself and how she wants to live her life. If she wants short or long hair, to be in the infantry, to work as a chef, to have a child or have an abortion, or whether to stay with her husband to or “Eat, Pray, Love,” the choice is hers.
Obviously, there is always going to be a range of choices and there are noncoforming people in every society. A certain amount of such diversity is a good thing. But conservatives used to understand that there were limits to deviance. If women can define themselves however they want, after all, so can men. Such men could decide they didn’t need to earn a living, or they could dodge military service and maintain their reputations, and they could leave or stay with a family depending on their fleeting desires. After all, everyone is counseled by the psychologists and advice columnists to “Follow your heart!”
Every society on earth, until recently, understood that both sexes living in a completely self-defined and unconstrained way would destroy that society, which depends above all else on distinctions, such as friend and enemy, civilian and soldier, mom and dad, and adult and child.
Logically, we have now reached the point where we so prize “choice” that people can now decide for themselves if they are a man or a woman. After all, if men and women can each live however they want with no distinct expectations arising from their status, why does it matter if a woman calls herself a man or a man calls himself a woman?
This is problematic because allowing people to define themselves really means a world without definitions, without meaning. As I observed in an earlier column,
What does it mean to be transgendered, if all the trappings of femaleness—femininity, attraction to men, psychological and physical characteristics—are nonessential, being subject to the same nominalist crucible? In other words, what does it mean to ‘feel’ female, in a world where femaleness has no intrinsic content?
The gotcha game with Jackson was supposed to be clever and show the absurdity of the modern-day liberal position, but the Republicans in Congress and most of the American Right are not willing to pull on this thread and see where it leads. In asking what is a woman, we must eventually tackle feminism and the broader project of modern individualism. Because both of those philosophies depend upon absolute autonomy, literally being a law unto oneself. But none of those senators has stuck his neck out to oppose laws disallowing pro-family wage policies, no fault divorce, or to question women being sent into combat.
It is telling that the Republican opposition to excessive accomodation for transgendered persons is not that this patronizes the severely mentally ill, or that the practice is simply repulsive and disgusting, but that it hurts women’s sports. Democrats are the real sexists! Indeed, it does hurt women’s sports, but it does much worse than that: It nearly completes the system of anti-meaning that is liberal individualism.
But there is at least one more step to go.
Republicans stumbled upon the next frontier by focusing on Jackson’s surprising degree of leniency in criminal sentencing, extending even to child pornography offenders. This seemed to be a rare instance in the Current Year™ moral hierarchy when Jackson’s shield of being a black woman was not effective.
While Jackson’s record on sentencing child pornography offenders may seem unrelated to the question of how to define a woman, consider how concerned the transgender movement is suddenly with children, including the right of educators to steer and influence them in a particular direction. This is what Florida Governor Ron DeSantis rightly called “grooming” behavior.
If one cannot distinguish men from women, and women from men, could one say, definitively, that a grown man is not a child? Or that a child is not an adult? In many ways the distinctions between the sexes are comparatively more concrete. Where childhood begins and ends varies across different cultures and historical epochs, but there is a difference, and the line must be drawn somewhere for the issue of legal consent, whether for contracts or for sexual relations.
One difference between the Right and the Left is that the Left is more than willing to unravel the sweater. There is a logic to its seemingly random walk from women in the workplace, to liberalized divorce laws, to abortion, to gay marriage, to transsexuals, transsexual children, and then to children as autonomous beings, able to define themselves, their sexuality, and the limits of their own behavior without constraint.
We may not reverse the tide, but we should at least understand the game plan that has unfolded. Whether it’s Judge Jackson or her supporters, we can never be sure that those who conflate men and women or children and adults will ever know the difference between right and wrong in general. And this knowledge is the first qualification to be a judge and a decent human being.