We are about three months away from the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, which has the potential to overturn Roe v. Wade. Four months after that, voters will head to the polls in the midterm elections. But at this week’s Senate confirmation hearings for Judge Ketanji Brown Jackson, President Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court, Democrats did surprisingly little to make the case for Roe.
Don’t take my word for it. Over at Slate, progressive legal commentator Dahlia Lithwick laments the “utter failure on the part of Senate Judiciary Committee Democrats to connect this hearing to what is going to be a catastrophic series of progressive losses at the Supreme Court this term, and the almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy.”
What were Senate Democrats thinking?
Perhaps they’d become increasingly convinced that abortion was not the best issue to seize on amid the fierce political headwinds they now face. Or perhaps they were worried that in a 50–50 Senate, losing the vote of pro-life West Virginia Democrat Joe Manchin was one of the few scenarios that posed a risk to Jackson’s confirmation; there was little chance that Manchin was ever going to vote against Jackson, but why increase the odds even a little bit?
Whatever the case may be, it is safe to say that to the extent that the hearings were a proxy battle over Roe and Dobbs, they were a battle Senate Republicans won.
Tennessee Republican Marsha Blackburn asked Jackson: “Do you commit to respecting the Court’s decision if it rules that Roe was wrongly decided and that the issue of abortion should be sent back to the states?”
“Whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court. It will be worthy of respect in the sense that it is the precedent. I commit to treating it as I would any other precedent,” Jackson replied.
When Nebraska GOP senator Ben Sasse again asked Jackson if any case this term could undermine the Supreme Court’s legitimacy, Jackson again replied that all court precedents are entitled to respect.
At other points in the hearings, Jackson had a bit more trouble with the issue of abortion. Under questioning from Utah senator Mike Lee, she couldn’t give a clear explanation of why the Court struck down Nebraska’s partial-birth-abortion ban in 2000 but upheld the federal partial-birth-abortion ban in 2007.
When Louisiana GOP senator John Kennedy asked Jackson when life begins, she replied: “Senator, I don’t know.”
“I have personal, religious and otherwise beliefs that have nothing to do with the law in terms of when life begins,” she continued. “I have a religious view that I set aside when I am ruling on cases.”
Kennedy followed up: “When does equal protection of the laws attach to a human being?”
Jackson replied: “I actually don’t know the answer to that question. I’m sorry.”
That last, crucial question has vexed and divided conservative legal scholars as much as it has their liberal counterparts. But Jackson had a difficult time even with some much simpler queries.
“Can you provide a definition for the word ‘woman’?” Senator Blackburn asked.
“No, I can’t, not in this context,” Jackson replied. “I’m not a biologist.”
Jackson’s backers have treated Blackburn’s question as a “gotcha” moment. But comparing and contrasting Jackson’s equivocation about the definition of a woman with the late justice Ruth Bader Ginsburg’s robust defense of abortion as a basic right at her own confirmation hearings is instructive.
“It is essential to woman’s equality with man that she be the decision-maker, that her choice be controlling,” Ginsburg told the Senate Judiciary Committee in 1993. “If you impose restraints that impede her choice, you are disadvantaging her because of her sex. . . . Abortion prohibition by the state . . . controls women and denies them full autonomy and full equality with men.”
How can one read those comments side by side with Jackson’s nonanswer to Blackburn and not conclude that the legal and political fights over transgender rights have undermined a fundamental argument of abortion advocates?
While pro-life Americans should avoid overconfidence, one can’t help but see the skittishness of Jackson and Senate Democrats whenever abortion came up in this week’s hearings as a positive sign. Three months before the Dobbs decision and more than six months after Texas passed its controversial abortion law, abortion opponents are winning the argument.
