Most Americans probably do not like it, but it is a sign of the times. Judicial nominees appear to be no longer selected because of their education, experience, and exceptional knowledge and application of the law. But for their ideological bent, how they can help the party in power in Washington D.C. and elsewhere. They are picked, or not picked, for the cases they might hear, on their political views, and how those views might affect how they rule. It is during the nomination process that the responses of those nominees are getting downright silly, but they have real-world consequences.
There is just one problem: Recently, during her nomination hearing, when given a series of questions by Sen. Lindsey Graham, one of those questions pertained to wording in a ruling from August 2022 that directed a biological male prisoner to be housed in a women's prison.
"In your Report & Recommendation, you open your 'Factual Background' section by stating: 'At birth, people are typically assigned a gender.' Is it possible to determine a person's sex by only analyzing their chromosomes?" Judge Netburn's response may sound like a road we have been down before.
If you recall, now Supreme Court Justice Ketanji Brown Jackson also had trouble with simple biology when asked by Sen. Marsha Blackburn, "Can you provide a definition for the word 'woman'?" To which Justice Brown Jackson replied, "Can I provide a definition? No, I can't." When Blackburn pressed her, she now famously, or infamously added, "Not in this context, I'm not a biologist." Advertisement It might be one thing to rattle off a ridiculous response like that in the environment of a hearing, but in Judge Netburn's case, it has very real ramifications.
The potential inmate in question pleaded guilty to molesting a nine-year-old boy, a class B felony, raping a 17-year-old girl, and criminal deviate conduct in the rape case; both are also class B felonies.
Cruz asked: "Let me ask you something. The other women in that prison, do they have any rights? Do they have the right not to have a six-foot-two man who is a repeat serial rapist put in as their cellmate?" Netburn's only answer was, "Senator Cruz, I consider the facts presented to me, and I reached a decision." She added that every inmate has the right "To be safe in their space." But clearly, Judge Netburn is more willing to grant that right to some inmates and not others.
Cruz called her exactly what she is: a "Political activist." Judges like Sarah Netburn and Ketanji Brown Jackson know exactly what they are doing by giving the responses to these types of questions that they do.
Sarah Netburn may be the judicial activist Sen. Cruz accused her of being, but her best activism may be making the case for requiring a semester or two of biology for aspiring law students.
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