Opinion: Blackburn's 'woman' question wasn't out of line

T.J. Kirkpatrick / The New York Times / Sen. Marsha Blackburn, R-Tenn., listens as Judge Ketanji Brown Jackson, President Joe Biden's nominee to the Supreme Court, testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., last week.
T.J. Kirkpatrick / The New York Times / Sen. Marsha Blackburn, R-Tenn., listens as Judge Ketanji Brown Jackson, President Joe Biden's nominee to the Supreme Court, testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., last week.

It was the question heard around the world.

"Can you provide a definition for the word 'woman'?" U.S. Sen. Marsha Blackburn, R-Tenn., asked U.S. Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing in the Senate last week.

The Volunteer State's senior senator, in our mind, was trying to do two things with her question.

The first was to catch Jackson off guard to see how she would react. Judges often are called upon to make snap decisions, and her answer might have displayed a temperament of speaking before she thought about her response.

The second had everything to do with issues of the day, and issues that are likely to come before the future justice. In her time on the high court, she is likely to have to consider transitioning men competing on women's athletic teams, transgender men having access to women's restrooms and the use of selected pronouns to designate one's gender (or lack of gender) of choice. So, yes, the question on the definition of a "woman" was certainly germane.

Since her question, Blackburn has been roasted in the mainstream media, been ridiculed, called a relic of another time, an embarrassment.

"[M]any Americans now ... feel the pain Tennesseans have for years when Blackburn opens her mouth," the left-leaning Tennessee Lookout wrote.

Indeed, earlier this week, a member of the Nashville school board was heard on a hot mic suggesting, "Can we just go set Marsha Blackburn on fire?"

The board member was identified as Sharon Gentry. The Nashville board of education did not respond to Nashville-based Daily Wire, which asked for a comment on the remark.

While we differ from Blackburn's occasionally in-your-face brand of conservatism, we don't think she was out of line in trying to get Jackson to define her own gender, especially in light of all that is likely to come before her.

The jurist said she couldn't answer the question because she wasn't a biologist.

"So you believe the meaning of the word 'woman' is so unclear and controversial that you can't give me a definition?" Blackburn asked.

Jackson said she only could provide decisions based on arguments and the law.

"The fact that you can't give me a straight answer about something as fundamental as what a woman is underscores the danger of the kind of progressive education that we are hearing about," Blackburn said.

While Jackson will have to define in her own mind what a woman is as she makes decisions using arguments and the law about gender-related issues that come before her, she's not the first nominee to be evasive with their answers. Nominees by Republican presidents often have had to tap dance around their thoughts on abortion because, while they personally may oppose it, it was settled law and they weren't talking about a case immediately before the court.

Jackson was nominated by a Democratic president to replace a justice appointed by a Democratic president. Because there is a Democrat-controlled Senate (with the tie-breaking 51st vote of Democrat Vice President Kamala Harris), she will be confirmed for the high court.

One Republican senator in a left-leaning state already said she would vote for Jackson, so President Joe Biden and senators will be able to say she was confirmed by a bipartisan majority.

Blackburn and most Republicans will not vote for her. She will be confirmed by just a few votes as payback for the way the three court nominees by former President Donald Trump were treated by Senate Democrats, and other nominees by Republican presidents going back to Ronald Reagan. That won't be the reason given, but that will be the reason for many of the votes.

The last overwhelming vote for a nominee by a Republican president was 90-9 for David Souter, who was nominated by President George H.W. Bush in 1990. (Of course, Souter turned out not to be conservative, so maybe Democrats knew something.) But President Bill Clinton's nominees sailed through 87-9 and 96-3, and even President Barack Obama's picks were confirmed 68-31 and 63-37.

We wish it hadn't come to this.

Tough questions for Supreme Court nominees made by Democrats and Republicans should be expected. Americans have a right to know what their judicial philosophies are and how they might rule on certain issues. But unless there is some overwhelming reason the nominee isn't qualified (as was not the case for Trump's nominees), presidents should get their justices.

As for Blackburn's question, it was not out of line, and it certainly was relevant to the issues Jackson might face. In fact, 95% of Middle and East Tennessee poll participants - although in a Blackburn telephone town hall with 30,000 tuning in - believe it is important for a Supreme Court justice to know the difference between a man and a woman.

Elections have consequences, and the fact a Supreme Court nominee won't define a gender when it matters more than it ever has before is one of them.

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