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I’m Not a Biologist

Either Jackson genuinely does not interpret the law in light of any moral framework, or her vision is so objectionable she won't say it.
Senate Holds Supreme Court Confirmation Hearings For Ketanji Brown Jackson

I’m not a biologist. Nor am I a lawyer. Nor am I an idiot. If you ask me what a woman is, I think I can string together a decent answer. Anyone who says they can’t is either very stupid or lying to you. Like Ketanji Brown Jackson, the doubly Harvard-educated jurist who stands as Joe Biden’s nominee to the Supreme Court of the United States.

On Tuesday Marsha Blackburn, the senior United States senator from Tennessee, asked Judge Jackson a simple question: “Can you provide a definition for the word ‘woman’?” Jackson, a magna cum laude graduate of Harvard College and sometime supervising editor of the Harvard Law Review answered: “Can I provide a definition? No. I can’t. Not in this context. I’m not a biologist.” The judge, brow furrowed, seemed equal parts annoyed and genuinely confused.

Dan McLaughlin, a right-liberal lawyer and senior writer at National Review, argued on Wednesday that Jackson’s answers before the Senate suggest that the late Justice Antonin Scalia’s originalism has won out. “Even when offered the biggest possible public stage to discuss the proper interpretation of the Constitution,” McLaughlin wrote, “neither Judge Ketanji Brown Jackson nor her Democratic supporters could do better than to agree with Justice Scalia.”

I do not share Scalia’s philosophy of law. Yet I suspect the late justice—whose official SCOTUS portrait depicts him with his hand on a copy of Webster’s New International Dictionary, Second Edition, Unabridged (1934) that sits atop a portrait of Thomas More—could have provided a definition of “woman” if he’d been asked. (Maybe from Webster’s: “An adult female person; a grown-up female person, as distinguished from a man or a child; sometimes, any female person.”)

How does a court or a country function if its jurists feel they should defer to experts in life science for the definitions of basic English words? Law cannot be interpreted in a vacuum. One of the most basic inputs for sound jurisprudence is a working knowledge of what words mean. If a nominee to the high court really does not know what a woman is, we’re in trouble.

Yet the word is admittedly more fraught than most. If Ketanji Brown Jackson doesn’t know the answer to Senator Blackburn’s question, then neither do half the people in this country. The strategy of the left on every social issue has been to invent, and then expand, a moral gray area so that even (or especially) those with advanced degrees from elite universities find themselves unable to distinguish a woman from a child or a man. When you entertain the “I’m not a biologist” copout, you don’t just feed into the scientism and expertocracy of the ruling class; you cede the mapping of reality to people who have no interest in the territory.

A USA Today article on the exchange practically says as much outright:

Scientists, gender law scholars and philosophers of biology said Jackson’s response was commendable, though perhaps misleading. It’s useful, they say, that Jackson suggested science could help answer Blackburn’s question, but they note that a competent biologist would not be able to offer a definitive answer either. Scientists agree there is no sufficient way to clearly define what makes someone a woman, and with billions of women on the planet, there is much variation.

Later on Tuesday came Senator John Kennedy’s turn to question the nominee. The junior senator from Louisiana (who was born in 1951 in Mississippi) began by telling Judge Jackson, “I find you to be very intelligent—and very articulate. I’m still a little uncertain about how you think.” After a long and awkward detour about court packing (in which Kennedy again called Jackson “very intelligent and very articulate”) and a brief one on women’s sports, he went on to ask the judge, “When does life begin, in your opinion?” Jackson raised her eyebrows, folded her hands, and said, “Senator…I don’t….know?” She shook her head as she forced this out, and laughed uncomfortably in punctuation.

Maybe she should ask a biologist. Any one worth his salt could tell her that human life begins at conception, the moment in which a genetically unique human being is created.

“Ma’am,” Kennedy prodded, “Do you have a belief?” Jackson answered: “I have, um, personal, religious, and otherwise beliefs that have nothing to do with the law in terms of when life begins.”

“Do you have a personal belief, though, about when life begins?” Kennedy pressed on. Jackson, who identifies as “protestant, nondenominational,” replied, “I have a religious view—that I set aside when I am ruling on cases.”

When Kennedy asked, “When does equal protection of the laws attach to a human being?” Biden’s nominee hesitated. “Well, Senator,” she said after a pause, “um, I believe that the Supreme Court, um—actually, I actually don’t know the answer to that question. I’m sorry. I don’t.”

Just like the question “What is a woman?”, “When does life begin?” is not purely biological. It is inseparable from the question of personhood—of when a human being is recognized as such in the eyes of the law and his fellow man. A judge who can’t provide an answer—or who thinks the matter of who is a human person and who is not is “private”—has no place in the government of a just society.

Either Judge Jackson genuinely does not interpret the law in light of any moral framework—in which case she would be no better than the braindead legal nihilists whose reign has delivered every judicial abomination from Griswold to Bostock and beyond in each direction (this is the “stupid” option)—or the substantive vision that informs her jurisprudence would be so objectionable to the half of Americans who do know what a woman is and do not want babies murdered that she thought better of speaking it aloud before the Senate (this is the “lying” option).

Pick your poison.