Good, fair questions were asked by a friend:
“Don't you see how that answer is given by virtually all nominees? They pretty much say that they can't answer questions without knowing the evidence presented. Nothing about her answer is unusual in these circumstances. The question was leading to what she thinks about transgender athletes. How could you answer that question without knowing what evidence would be presented? It was a gotcha question and she didn't fall for it.”
I answered that I do see that "virtually all nominees" attempt to avoid ruling on cases in the confirmation hearings. But I also see the slide toward intellectual and judicial anarchy that one side is eager to impose. We have slid so far toward being uncertain of any truth that even the most fundamental truths cannot be asserted with confidence. -And that is no mere technical difficulty. Using your criteria would make it so that no significant questions could really be asked at all because we can never know which issues might soon "be in the court system." Indeed, those who wish to usurp the constitution in order to empower activist judges want every facet of life to come under the tentacles of the court system.
A serious thinker and qualified nominee—even if they were attempting to ethically dodge dilemmas in pending pivotal cases—would be able to at least answer with something along the lines of:
"Throughout the history of law, indeed throughout the history of mankind, human beings have been able to distinguish what makes a male and a female. As science advanced, we also discovered chromosomes and found that there are only two kinds of humans a male and a female. This is also the case with virtually every species of animal. There are no known species where there are three different sexes, with perhaps exceptions found in the insect and lower, less developed creatures.
This defining distinction is hugely significant physiologically, and differences in behaviors, instincts, strengths, weaknesses and even appearance are generally so obvious that for the entire history of mankind, humans have been able to instantly identify whether a person they encounter is man or woman, unless attempts were made to appear as the other. One doesn’t need to be a biologist to know what children are able to recognize even at an age prior to full consciousness.”
This farcical nominee’s dodge is a sure sign that she either doesn’t have a clue or else she aims to obliterate the ‘settledness’ of the truths I’ve just outlined using her judicial power as her weapon. When the whodunit is written I suspect we’ll find the murderer of Man and Woman was committed in the courtroom by Justice Jackson with a pen.