Maybe it was a gaffe, a long-standing issue for Joe, or maybe it was pandering to a cohort whose support was squishy, but Biden said it out loud, on TV, for everyone to hear.

In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling. What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.

There is a vast difference between saying that a president would want to nominate a black woman to the Supreme Court and committing to do so. The former is aspirational and a reflection of one’s concern over the fact that while we have some brilliant black women on the bench, practicing law and teaching in law schools, we’ve never had one sitting on the Supreme Court. Is it about time? Of course. Why not?

But to affirmatively state that whomever he would nominate, it will be a person of a particular race and gender (assuming the person’s gender doesn’t morph in the interim) is not merely prohibited by law as blatant discrimination, but suffers from the same fatal flaw that precluded the consideration of black women for the Supreme Court up to now.

There have been some folks on the Court who have fundamentally altered American life and law. William O. Douglas. Robert H. Jackson. Earl Warren, Harry Blackmun. And, of course, Thurgood Marshall. Would we be better off without them and with Sandra O’Conner, Ruth Bader Ginsburg, Elena Kagan, and the empathetic Latina herself, Sonia Sotomayor?

Maybe we would. Maybe we wouldn’t. It’s hard to say since they’re one of nine and constrained by their brethren (and sistren). But going out on a limb here, the racial and gender make-up of the Supreme Court may well better reflect appearances and the sort of symbolism that matters most to the woke, but it’s the rulings of the Court that have lasting impacts.

Of course, there’s the assumption that a black female justice will rule the way one stereotypically expects a black woman to rule, because all black women are required to think and act according to the rules of social justice. Many have called for the bench to “look more like us,” from having more criminal defense lawyers on the federal judiciary to having more black and women judges, because that way we can load up the system with people who will behave like our favorite cartoon characters, doing exactly what we want them to do because they’re of the correct race, gender or background.

Clarence Thomas? The exception that proves the rule, obviously. But Thurgood Marshall? Would Joe Biden turn him away? Apparently, he would, because he said so on TV and committed to refusing to even consider him. Then again, Biden might consider Kamala Harris, who checks the boxes. And with an unfettered lifetime appointment, she would be freed from pretending to be woke to get elected, and could indulge the passions reflected by every decision in her career up to the day she reinvented herself to run for higher office.

Picture Sam Alito sitting in the Supreme Court cafeteria, eating microwave pizza, finally having someone to sit with him during lunch. And Harris would meet the criteria while Marshall would not. Progress.