DANIEL VAUGHAN: The Jackson hearings don’t matter, what comes after does

This week, the Senate Judiciary Committee wrapped up its hearings for Supreme Court nominee Ketanji Brown Jackson. While much is getting made over some of the moments from those hearings, the vote is essentially irrelevant. It’s a near certainty Jackson passes a vote in the Senate. What matters is fallout from her hearings.

I say near certainty because no future is written in stone. Politico walks through nine potential Senate swing votes. But without a significant catalyst to derail her nomination, Jackson should get two to six Republican votes. That will give moderate Democrats cover to vote for her with ease.

Republicans have not shown an ace up the sleeve to derail this process. Placing Jackson on the Supreme Court does not shift the conservative to liberal balance. In many respects, Republicans are saving their powder for another day regarding Supreme Court nominations.

That does not mean the hearings were a total wash. While the cake for this vote is already baked, the hearings have opened up a new line of attack against Democrats in the midterms.

Defining a woman.

Perhaps the highlight of the hearings came from an exchange with the Republican Senator from Tennessee Marsha Blackburn. Fox News provides the context:

“Can you provide a definition for the word ‘woman’?” Sen. Blackburn, R-Tenn., asked.

“Can I provide a definition? No,” Jackson responded. “I can’t.”

“You can’t?” Blackburn asked.

“Not in this context. I’m not a biologist,” the judge replied.

There are multiple reasons why this answer is ludicrous. From a judicial perspective, the idea that a jurist can’t define a word is laughably wrong. Just this past Supreme Court term, the justices were engaged in a long textualist debate over the meaning of the word “sex” in Title VII of the Civil Rights Act.

How a judge defines words in statutes in a general and legal context is part of the job description. The Supreme Court is the highest bench in the land. It settles textual and contextual legal disagreements in every area of law.

It’s also a bizarre spectacle politically. Mull this over for a moment: Joe Biden campaigned on nominating a black woman to the Supreme Court. If his nominee can’t define what a woman is, how do we know if Biden fulfills that promise? If these definitions are so hard, isn’t it presumptuous of Biden to make such a claim?

It’s all nonsense on stilts.

The midterm attack.

But what makes this hilarious is that Ketanji Brown Jackson unwittingly presented Republicans with a perfect question for the campaign season. Every Democratic candidate for office in 2022 will get to answer one question: can you define what a woman is?

Suppose you’re a Democrat running in a purple district, already facing an uphill battle due to Biden’s abysmal approval numbers. In that case, this makes that climb even steeper. It’s the kind of question where if you answer it “wrongly,” you’re either angering the lunatic wing of the Democratic Party or the general voting public.

Republicans asked this question as part of their lines of attack on critical race theory and education. But the simple way to present these two is as follows. Ask politicians the following.

First, do you believe parents have a say in what happens in public education?

Democrats in Florida commissioned a poll asking, “Should students through kindergarten through 3rd grade be taught about sexual orientation in the classroom by their teachers?” A majority of Democrats, 52% to 38%, agreed with Republicans that schools shouldn’t teach that subject.

That question got written over the media meltdown on what leftists called the “Don’t say gay” bill. Remember, this is not a general poll of voters; it’s a poll of Florida Democratic voters. Florida Democrats sided with Republican Gov. Ron DeSantis and Florida Republicans.

The road gets harder this summer.

The second question is, can you define what a woman is?

This question is likely to get even more electric over the summer. The Supreme Court is expected to strike down Roe v. Wade and Planned Parenthood v Casey, sending the issue of abortion back to the states. Suppose you’re a Democratic Party who wants to revert to the “War on Women” playbook against Republicans. How do you do that if your candidates are terrified of defining what a woman is?

These questions will get added on top of the Afghanistan debacle, Ukraine, inflation, and whatever state the economy is by election day. The Virginia and New Jersey elections showed that Republicans have considerable energy beneath their electoral wings heading into the midterms.

The soon-to-be newest member of the Supreme Court likely added some more energy.