The question addressed to Ketanji Brown-Jackson about defining a woman is infuriating. Transparent political theater, it demonstrates ignorance of biology (as this half-hour video clarifies) and, most of all, undermines the point of the Supreme Court.
Here is what I wish Brown-Jackson could have said:
Senator,
I appreciate your question and I appreciate too that by drawing from me a definitive answer you can go to your political base with a claim about the inadequacy of my definition because it would not be “common sense” enough to your liking or to theirs.
Can I distinguish in your common sense and everyday fashion between a person who has a penis and one who has a vagina, between those humans who inseminate and those who gestate? Is that what you are asking? .
Nor do I doubt my not answering you definitively will help you score political points as well.
But then scoring political points is your business. Mine is the law and our legal system has, to put it in terms I hope you can understand, a dual duty. The law must both express and contravene the kind of common sense answer you seek from me.
In terms of expressing common sense, we all agree that people who murder others maliciously should be held accountable. I do not expect that to change.
In our history, though, it has also been common sense that only white male property owners should vote and that all the possessions of a wife should belong to her husband and that a person with more melanin in their skin should only count as 3/5 a person.
By giving us The Constitution the framers did not tell us what common sense is, they told us how to think. This is why the law can help improve common sense or at least respond to how our common sense evolves over time.
In this vein, Senator, I remind you, that it was once common sense to think that the only person who had rights wore a crown. Perhaps nothing is more important to our country, and by extension to the work of The Supreme Court, than the first three words of the document I hope it will be my job to interpret: “We the people.”
How do you define “we,” Senator?
Do property owners and women and blacks belong to “we?’ How about immigrants? Does their “we” allow them to vote? To serve in the army? To run for office? You think it obvious what a woman and a man are and wish to embarrass me with your question, as is your right. Be our whole country is based on the word “we” and yet to answer the question “who are we?” is an ongoing challenge, a persistent battle.
As it will be when the definition of “we” changes, or does not, to include the transgender community in those cases likely to come up in front of the court. It is towards those cases your question means to point, but I am sorry Senator, I won’t know how to define “we” until I hear the case. Is it about voting? Running for office? Something else?
In the meantime, your question pretends I do not understand boys are boys and girls are girls, despite the fact that I am a wife and mother.
It also forgets the purpose of the law is to lift we lowly humans up from the ditch of whim and common instinct. That is the beauty of the rule of law. It elevates us to equality in spite of ourselves. It makes us all better, even when we as individuals are not at our best.
For instance, in this hallowed room, you and I are now equal under the law. And that is true even though in what you ask and how you ask it anyone with common sense can see you treat me as three-fifths a person.
Personally, I find that treatment objectionable And beneath you. But I am restored knowing the law defines us both as American, insists on “we.” Feel free to join me in that knowledge, Senator.
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And while this was extraordinarily eloquent, and it was satisfying to read l, we all know that she surely has said as much. But we also know why, if she wants any hope of serving on this Court, at this point, she had to demonstrate the kind of equanimity that *should be* required of all Supreme Court Justices.