Ketanji Brown Jackson’s confirmation hearing a referendum on LGBTQ rights, race

Judge Ketanji Brown Jackson at her Supreme Court confirmation hearing. (Youtube screenshot.)

It was nearly 10 p.m. Tuesday night, more than 12 hours into the second day of the confirmation hearings for U.S. Supreme Court nominee Judge Ketanji Brown Jackson, when Sen. Marsha Blackburn (R-TN) asked Jackson to define the term woman. 

Jackson declined, saying “I can’t.”

“You can’t?” Blackburn said, her voice rising.

“Not in this context. I’m not a biologist,” Jackson said.

“The meaning of the word woman is so unclear and controversial that you can’t give me a definition?” Blackburn asked, her tone incredulous.

As she had many times over the course of the day, Jackson said that her role as a judge is to interpret the law, not give definitions of issues that might become law.

“The fact that you can’t give me a straight answer about something as fundamental as what a woman is, underscores the dangers of the kind of progressive education that we are hearing about,” Blackburn said. The Tennessee senator had already claimed earlier in her questioning of Jackson that children were being “taught that they could choose their gender” in elementary schools, an issue Blackburn said was fundamental to parental rights. Children are not being taught this in schools.

Blackburn moved on to a different topic — University of Pennsylvania NCAA swimmer Lia Thomas, who last week became the first trans woman to win an NCAA 500 meter freestyle race. Thomas, who transitioned in 2018 and had previously swum on the men’s team, has become a flashpoint for conservatives who claim she has a competitive edge due to her body mass and arm and leg strength and length. 

On Tuesday, GOP Florida Gov. Ron DeSantis said he would not acknowledge Thomas as the winner, insisting that the NCAA is “perpetuating a fraud” and declared University of Virginia freshman and Florida native Emma Weyant, who came in second, as the “rightful winner” of the race. Blackburn referenced those issues.

Blackburn told Jackson that Thomas, who has been swimming since she was five, being “allowed” to swim was sending a terrible message to  “girls who aspire to compete and win in sports.” Blackburn asked Jackson what she thought that message was.

Jackson replied, “Senator, I’m not sure what message that sends. If you’re asking me about the legal issues related to it, those are topics that are being hotly discussed, as you say, and could come to the court.”

Blackburn, her voice rising, told Jackson, “I think it tells our girls that their voices don’t matter. I think it tells them that they’re second-class citizens. And parents want to have a Supreme Court justice who is committed to preserving parental autonomy and protecting our nation’s children.” 

The exchange with Blackburn epitomized a day of questioning that had, from the Republicans, been contentious, condescending and often outright rude. It also was far from the only exchange that highlighted LGBT+ issues and how critical they now are to the GOP midterm election platform. In the Pennsylvania Senate race, GOP candidate Dr. Mehmet Oz refers to “men in women’s sports” in one of his political ads.

The focal points from the Republicans throughout Tuesday and Wednesday’s questioning of Jackson was marked by hot-button cultural issues for the GOP, notably abortion rights, how race and the history of slavery and Jim Crow are taught in the schools and, as Blackburn noted, parental rights. 

Some senators, notably Josh Hawley (R-MO) and Tom Cotton (R-AR) were fixated on Jackson’s sentencing guidelines in child pornography cases. Lindsey Graham suggested Jackson, who had represented defendants in Guantanamo Bay prison, was a terrorist sympathizer. John Cornyn (R-TX), spent nearly all of his time on Tuesday trying to re-litigate Obergefell v. Hodges, the 2015 Supreme Court case that legalized same-sex marriage in all 50 states. 

There was much discussion about Critical Race Theory and where and when it is being taught. The GOP Twitter account even put up an interactive meme via their rapid response team with a photo of Jackson and her initials, KBJ. Then a slash runs through her initials which are replaced with the letters CRT. As Graham noted early on in the questioning, “Republicans are used to being called racists.” 

During the 2018 confirmation hearings for Brett Kavanaugh, then Sen. Kamala Harris repeatedly asked Kavanaugh if he considered Obergefell v. Hodges to be settled law. Harris had been at the forefront of the marriage equality debate in 2004 as District Attorney of San Francisco. Kavanaugh refused to answer.

Cornyn devoted much of his time Tuesday attempting to get Jackson to agree with him that Obergefell was judicial overreach and that it had violated religious precepts of “traditional marriage” which he defined as “marriage between a man and a woman.” 

Cornyn said, “We’re all concerned about the legitimacy of our institutions.” Cornyn queried whether there had been “substantive due process” in the Supreme Court decision recognizing same-sex marriage, noting that the case had required states to license and recognize same-sex marriages despite religious objections.

Jackson replied, “I believe that judges are not policymakers.”

Cornyn said, “When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs, doesn’t that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?”

Jackson replied, “That is the nature of a right. That when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”

And as a woman in an interracial marriage, Jackson is vividly aware that such marriages were illegal until the Supreme Court’s 1967 decision in Loving v. Virginia.

Jackson, a judge of the United States Court of Appeals for the District of Columbia Circuit, is the first Black woman nominee in the 230 year history of the court. She was nominated to replace retiring Justice Stephen Breyer for whom she had previously clerked. 

A simple majority of 51 votes is required to confirm her nomination — all 50 Democrats plus the tie-breaking vote of Vice President Harris would confirm her. Jackson was already confirmed 53-44 to the United States Court of Appeals for the District of Columbia Circuit in June 2021 by the very same Senate that is tasked with confirming her to the Supreme Court. 

Prior to that appointment, Jackson had been a judge of the United States District Court for the District of Columbia since 2013. Before that Jackson was Vice Chair of the United States Sentencing Commission. Jackson has also previously been a public defender and if confirmed would be the only member of the Supreme Court who has been a defense attorney.

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.