At this point, President Biden has no choice, ethically or practically, other than to keep his promise to nominate a black woman to fill the Supreme Court vacancy. By all means, he deserves criticism for making such a promise, but that was done quite a while ago, when he was in full pander mode during the 2020 Democratic Presidential primaries. Breaking a pledge is never ethical, unless conditions have changed sufficiently to make the keeping of the pledge materially different from what was anticipated at the time, or if keeping the promise would be illegal.
It is often forgotten that President Reagan pledged to nominate a woman to the Supreme Court, and many liberal pundits at the time predicted that he would renege on that promise. He didn’t. It was a different kind of pledge than Biden’s however. There was a fairly deep pool of qualified women to choose from particularly if he dipped into the group of qualified female lawyers and academics. The lack of any woman ever sitting on the Court since the 18th Century had become an embarrassment. It wasn’t a matter of making the Court “look like America,” it was whether the Court could credibly look like a gentleman’s club.
Nor is reneging on his promise politically feasible for Biden. Nominating a black female isn’t likely to win over many voters, but breaking the promise would probably lose him a lot of support: his is the party of “equity and diversity,” after all, as well as affirmative action. His approval ratings are terrible already. Realistically, Joe has no choice.
Which is not to say that having made such an unethical promise, Biden doesn’t deserve all the backlash from it he is taking. Nor does it justify calling those who correctly point out how adverse to the interests of the law, the government, justice and the nation that his unnecessary commitment is, “racist.”
But that’s what the Left is doing. Thus, I assume, the recent ABC News/Ipsos poll showing that about three-quarters of Americans (76%) want Biden to consider “all possible nominees” will be taken as just one more indication of how racist Americans are. Professor Eugene Volokh has noted that Biden has limited himself to roughly 7% of the population for his choice, the equivalent of announcing that he would only nominate someone whose name begins with “D.” In fact, the pool is smaller even than that: less than 7% of judges and lawyers are black women.
Joining The Biden Supreme Court Pick Ethics Train Wreck, meanwhile, as was fully predictable, is Georgetown University Law Center’s Black Law Students Association, which is demanding that Ilya Shapiro, the director of constitutional studies at the Cato Institute, be fired from his brand new position at GULC for expressing an opinion that BALSA doesn’t like, and that 76% of the public agree with. We have become familiar with the tendency on the Left to silence the opposition in an argument rather than win the debate fairly.
One more point: limiting the choice of a new SCOTUS Justice by race and gender is worse that a President limiting his choice to judges who oppose Roe v. Wade, as Trump pledged to do, but not that much worse. Its still uses presumed bias to fill a position that should be as bias-free as possible. So-called “litmus tests” are unethical too.