When nominees come before the U.S. Senate hoping to join the Supreme Court, the proceedings are filled with bizarre rituals of posturing, platitudes and obfuscation. Much of this process has become ridiculous and regrettable — nominees pretend that they shouldn't be expected to divulge their opinions on crucial matters over which they'll essentially have final say in a lifetime appointment, and senators decide how much transparency they expect from the nominee based on the party of the president that nominated them.
But as Judge Amy Coney Barrett's nomination proceeds this week, there was something clearly much darker going on than the odd political dance that has traditionally developed around such events. There's a fraud being carried out.
The only remaining question is: Who is being defrauded? Who is the mark?
The existence of the fraud, however, is evident. There's a clear disconnect between how Barrett claims to view her nomination and how President Donald Trump views her nomination.
Since his presidential campaign, Trump has been clearer than any other modern Republican president about how he views the courts. They are, without a doubt, a vehicle for enacting the views of his right-wing supporters, particularly evangelical Christians and opponents of abortion. (His audience, too, includes corporations and the wealthy who look to the courts to curtail any effort to rein in their economic and societal power, though he is less explicit about that)
On abortion, he was clear in 2016 that his judicial appointments would be designed to tear down protections for women's right to choose. He said of his nominees: "They will be pro-life, and we will see what about overturning."
"I will appoint judges that will be pro-life, yes," he said, promising to "protect the sanctity of life" and adding, "I will protect it, and the biggest way you can protect it is through the Supreme Court and putting people in the court." With these nominees, he said, overturning Roe v. Wade — the ruling that established a right to get an abortion — will happen "automatically."
On Obamacare, Trump tweeted in 2015:
Chief Justice Roberts disappointed conservatives when he upheld most of the Affordable Care Act in 2012, ruling that its controversial individual mandate was permissible under Congress's taxing authority. Now, a similar case has come before the Supreme Court to be heard shortly after the election, likely after Barrett will be confirmed. Barrett has previously criticized Roberts' 2012 ruling, and if she joined the court, she could plausibly join a 5-seat majority that could strike down the entire law. Clearly, that's what Trump wanted, and he has recently said it would be "a big win."
Trump has also made clear that he expects the nominee he picked to protect him from the "hoax" of mail-in ballots in any potential legal dispute over the upcoming election.
"We need nine justices. You need that," Trump told reporters on Sept. 23. "With the unsolicited millions of ballots that they're sending, it's a scam; it's a hoax. Everybody knows that. And the Democrats know it better than anybody else. So you're going to need nine justices up there. I think it's going to be very important. Because what they're doing is a hoax, with the ballots."
It's clear, then, that Trump picked Barrett as his nominee with very specific reasons in mind — indeed, he picked her, at least in part, to fulfill promises to his right-wing voters. And given right-wing media's enthusiasm for Barrett, it seems they believe he is fulfilling his promise.
But according to Barrett, Trump hasn't fulfilled his promise. Under repeated questioning from senators, she denied that she would come to the court with any specific agenda.
"I have no mission and no agenda," she said. "Judges don't have campaign promises."
Asked specifically about Trump's tweet on Obamacare by Sen. Amy Klobuchar (D-MN), Barrett swatted away the question.
"I can't really speak to what the president has said on Twitter," she said. "He hasn't said any of that to me."
She also claimed: "I am 100 percent committed to judicial independence from political pressure."
So what is going on here? Trump told voters repeatedly that his justices would rule a certain way. These promises almost certainly were crucial to consolidating Republican support in the run-up to the 2016 election. But Barrett said that she is not committed to ruling any particular way in future cases, and the president has no influence on her decisions.
There are three plausible options I can see. First, Trump defrauded his voters. He pretended to want to appoint judges that would act in a certain way, but he didn't or couldn't fulfill that promise. Second, Barrett could have defrauded Trump. Did she let him believe she would act as a justice in the way he hoped, while in fact she had no plans to carry out his agenda? Or third, Barrett is defrauding all of us. She is committed to the right-wing agenda touted by Trump, but she doesn't want us or the U.S. Senate to know it.
One might object that there's another possibility. Perhaps Barrett isn't committed to the president's agenda, but her perspective and jurisprudential approach — which she calls "originalism" — will just happen to lead her to to take steps in line with Trump's vision.
This view strains credibility on its face, and it's also undermined by Barrett's own words.
"If I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett," she said. "And that's so because originalists don't always agree, and neither do textualists."
So even if Barrett's "originalism" were an independent, non-agenda driven philosophy, the president couldn't and shouldn't be persuaded that she'll act the way he wants on the bench.
We must then accept the conclusion, then, that there's a fraud at the heart of Barrett's nomination. It's a disturbing thought, and one she should be willing to address.