Judge right to exercise caution regarding gender question

Of all the questions that ranged from wise to wacky during Judge Ketanji Brown Jackson’s confirmation hearings to the Supreme Court, one sticks out with memorable prominence: What is a woman?

That’s a good question. If you thought it was pretty well settled during your preschool potty training, as I did, you haven’t been paying attention to the moral panic ignited in some quarters about transgender rights.

It includes such roiling controversies as “bathroom bills” to limit bathroom access to the gender one is assigned at birth, and participation by transgender athletes such as Lia Thomas, who recently won a collegiate swimming championship.

In fact, regardless of where one stands on this thorny issue, the increasingly strong possibility that the definition of “woman” under the law might soon reach the Supreme Court is an excellent reason for Jackson to avoid answering the question, which she did. But that practical consideration didn’t end the matter for Sen. Marsha Blackburn, who quickly took to Twitter:

“This is a simple question that requires a simple answer,” the Tennessee Republican tweeted. “It’s a major red flag that a Supreme Court nominee backed by the far left refuses to define the word ‘woman.’ “

In fact the real red flag is the possibility that Jackson, once seated on the high court, would be obligated to recuse herself from participating in cases involving gender rights and any other issue on which she has put herself on the record.

What makes the seemingly “simple question” of gender complicated is its grounding in identity, the labeling of what we think we are versus what others think when they see us.

The framers of the Constitution did not mention women, who didn’t win the right to vote until the 19th Amendment was ratified in 1920. And the legal doctrine of “coverture” in common law allowed women to own property and make contracts until they married, at which point their legal rights were legally absorbed into those of their husbands.

We’ve progressed past such sexist attitudes, but not all sexism or the moral panic that identity issues can raise.

Supreme Court confirmation hearings increasingly have become a stage for political theater, especially after Democratic senators blocked Judge Robert Bork’s nomination in 1987.

Nowadays, it appears, everybody gets tough treatment, even Jackson, whose confirmation does not change the court’s current six-to-three dominance by conservatives. She is to replace liberal Justice Stephen Breyer.

Let me give discredit where it is due. Blackburn was not alone in reaching for wild excuses to put on a good show for the cameras. Among other right-wing notables, Sen. Ted Cruz of Texas went on a tear about a children’s book called “Antiracist Baby” in the library of the elite private school where she sits on the board. Sens. Blackburn, Tom Cotton of Arkansas and Josh Hawley of Missouri tried to cast Jackson as soft on criminals, especially pedophiles — a word that makes one’s blood boil just to hear it.

But not all Republicans have gone off the edges of reality. Sen. Ben Sasse, a Nebraska, Republican called out the “jackassery we see around here” of “people mugging” for the cameras.

Democrat Dick Durbin of Illinois thanked a “majority” of Republicans, including Sasse, for handling themselves “professionally” and “in the best traditions of the United States Senate.”

Praise from Durbin won’t do Sasse much good in the Grand Old Party’s circles, but he told the truth.

As for what soon-to-be-Justice Jackson really thinks about the “What is a woman” question, her best answer for now might be, as the old saying goes, we’ll see you in court.