There is a schism between the understanding of lawyers engaged in the prosecution and defense of criminal charges and the public in general that is easily exploited by dishonest demagogues on an issue like the appropriate sentence for possession of child pornography. Even very conservative, very prosecutorial, Andy McCarthy knows it’s bullshit, and risked his right wing cred to say so out loud.

No, this isn’t a debate, not because reasonable minds can’t differ, but because those who believe there’s something here to argue are either using it to demagogue (Hawley and Cruz, representing their respective Yale and Harvard law school’s finest) or are so lacking in the understanding of our legal system that they lack the capacity to understand why it’s complete crap. And there’s little point in trying to explain, as if it’s possible to do so to people wholly lacking the foundation to understand, things to people who don’t want to understand. So, believe whatever you want. You can’t be helped and change nothing.

But there is no trap to be had here. This is straight out attack dog nonsense, that Judge Ketanji Brown Jackson is soft on pedos and thus pedo adjacent, if not a pedo herself (yeah, seen a lot of that out of the brightest lights on the right fringe). Sure, it’s crazy, but it’s obvious crazy, at least to those of us who are knowledgeable and experience in this area. To those who aren’t, you’ll believe whatever nonsense you want to believe, true of all zealots.

That, however, belies the exploitation of the other trap. It was sprung by no less a fool than Tennessee’s own Sen. Marsha Blackburn.

Sen. Marsha Blackburn: "Can you provide a definition for the word woman?"

Judge Ketanji Brown Jackson: "I can't. Not in this context. I'm not a biologist." pic.twitter.com/BK1ENBdYcG

— The Post Millennial (@TPostMillennial) March 23, 2022

KBJ should have been ready for this sort of question, and prepared to pull out the Ginsburg response, but instead she punted to “I’m not a biologist.” There are two obvious problems with this reference, as it doesn’t require a doctorate in biology to know that vaginas and penises exist, or to pull down someone’s genes to expose their chromosomes. On the other hand, by referring to biologists, KBJ suggests that the answer lies in biology, which is itself a disavowal of those whose belief in gender is that biology has nothing to do with it. One is the gender one identies as, biology be damned.

The problem with the answer to such an obvious gotcha question is that to state the obvious, that a woman is a person with double X chromosomes, with certain anatomical features such as a vagina and uterus, is to reject the position taken by her most passionate backers, that gender is whatever one identifies as, and the person who identifies as a woman with a penis and XY chromosomes is every bit as much of a woman as anyone else who identifies as a woman. There is no middle ground position, not because of the biology but because the believers that gender is a social construct have left someone like KBJ with no room to move.

What constitutes sex, of course, has nothing to do with whether discrimination against transgender people should be unlawful. But by constructing the battle as one over the definition of “woman,” the woke have left no room to manuever. It’s either acquiesce to their most extreme positions or not. KBJ chose not to adopt the fringiest position, but at the same time tried not to say so. In the process, she did, although in the negative such that she was less expressing any affirmative view as doing a poor job of avoiding the trap.

The better, and the real, answer she could and should have given was that the definition of sex (not gender, because the law prohibits discrimination on the basis of “sex”) will likely come before the Supreme Court, will be subject to dispute, and it would be improper of her to assert a position on a likely controversy in advance of briefing, argument and deliberation. In other words, it would be wrong to give an advance opinion on a matter that she may have to decide as a justice. Nobody likes this response as it provides little information about who is being confirmed, but it’s the only fair and reasonable answer.

And yet, it’s still not quite as simple as invoking the Ginsburg Rule, because the nature of this question is so fundamental, so political, as to require no briefing, no argument, no deliberation. Does any person not know what a woman is? Is this really the sort of question that requires thousands of pages in a record, 25 pages of briefing and a couple hours of oral argument, to state who is a woman?

The use of such a ridiculous question by someone so prone to ridiculousness as Marsha Blackburn (although, to be fair, it could just as well have been any number of other Republican senators), may be the worst sort of gotcha demagoguery, but no one should be remotely surprised that it happened, both because it reflects a clear dividing line between the ideology of the left and an answer too obvious for most liberal Democrats, and it was just too damn easy for the Republicans to do. As Thomas Edsall makes plain, the Dems are doing everything in their power to facilitate the right to make them look as ridiculous as possible.

There is an entirely fair line of questioning as to Judge Jackson’s judicial philosophy, whether she tends more toward “living Constitution” or originalist or textualist, and, frankly, her responses suggest that she takes textualism quite seriously. But she’s been put into an untenable position by the traps sprung by disingenuous Republican senators, but set by the most extreme and illiberal on the left.

If they support Judge Jackson’s nomination, as I do, not because of her race or gender, but because she’ll make a damn fine Supreme Court justice, then it’s a shame the extremes of ideology have given rise to this trap to be used against her. The harder the radical woke push, the greater the problems that liberal judges will face in their efforts not to get caught between a rock and the hard place of absurdity. While invoking the Ginsburg Rule is the best answer KBJ could have given, it’s nuts for a Supreme Court nominee to be unable to answer a question as simple as “Can you provide a definition for the word woman?”