Judge Ketanji Brown Jackson made headlines by saying that she could not define “woman,” except in context. Her answer – or non-answer – has become grist for the mill of Republican senators and media pundits opposed to her nomination. But she was absolutely right.
In fact, it is Republicans who are having difficulty defining the term “woman.” Some Republican controlled legislatures have defined it one way in the context of sports eligibility, while others have defined it differently.They understand that the definition of who is a woman depends completely on context.
Recall the conflict several years ago about who could use a woman’s bathroom. That issue still remains unresolved both as a matter of law and a matter of practice. Some women’s colleges are debating the issue as it relates to female applicants who were born men. So, too, are “men’s only” and “women’s only” singing and other groups and clubs.
If we were ever to restore the draft, and it exempted women as the previous draft generally did, a definition would be needed for that purpose as well. For purposes of some medical treatment the chromosomal definition – XX vs. XY — may be definitive, but not necessarily for psychiatric or psychological treatment. So, there is no singular answer to a question that has become far more complicated over the last several decades.
True conservatives should be trying to keep the government as far away as possible from the most intimidate and private decisions about how to lead one’s life. Yet social conservatives – as distinguished from libertarian conservatives – seem to want the government in our bedrooms, hospital rooms and other private places. They want to intrude on the most intimate decisions ranging from when to have a child (birth control, abortion) to who to marry (gay marriage), to when to die (end of life decisions) Indeed, the law isn’t always clear in its definition of “death.” These and other decisions should be made by individuals in consultation with their families, religious mentors, and others close to them, not by distant state legislatures, governors or police.
The same is true about the decision to change genders. We now have technology that permits individuals not to be limited by their chromosomal genetic birth identity. Some individuals will make wise decisions that will lead them to a happier life. I know of two such people — grandchildren of friends. Others may make mistakes. But a true conservative should leave it to the individual rather than the state to make even risky or unpopular decisions that do not affect others to a substantial degree.
In Israel, people are divided about the issue of “Who is a Jew?”. In other countries and cultures, there are debates about who is Black. We continue to argue about the definition of marriage, despite the Supreme Court’s rejection of the definition of a legal union between a man and a woman.
We live in an increasingly diverse world where matters of degree are increasingly common. Small minds demand certainty, simplicity and black-or-white distinctions. It is uncomfortable for some to believe that the same human being could be a woman for some purposes (e.g., bathroom use) a man for other purposes (e.g., some medical treatments), and a subject of understandable debate for yet other purposes (competing in sports).
Judge Jackson has been nominated to serve on the nation’s highest court. Many of these and related issues may well be presented to the justices over the long judicial career she is likely to have. When these cases come before her, she will have to consider the best scientific, social scientific and other evidence that may be presented by the parties and by amicus briefs. Every case will present different fact patterns. She will then have to apply the constantly evolving law on these issues. Her task will be complex; her conclusions are not predictable.
She was right in not giving the kind of singular, single-minded answer that her Republican questioners would have given. As she wisely implied, her answers will depend on context. For a judge, the best answer often is: “It depends.”
Jackson should not be disqualified because she gave a good answer to a bad question. She should be confirmed as the first woman of color in our history, as well as the first former public defender to serve on the Supreme Court. She provides diversity not only in her background but in her nuanced answers to the “gotcha” questions posed by senators on the judiciary committee.
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