Dahlia Lithwick and Mark Joseph Stern argue that the Judicial Conference's decision not to refer Justice Thomas to the Department of Justice for investigation is a sign of the judiciary's unwillingness to police itself and that the Trump administration is unlikely to hold Thomas accountable, further highlighting the lack of oversight and potential for corruption within the highest levels of government. However, Stern substantially mischaracterizes the positions of both the Judicial Conference and the Supreme Court, putting up straw men that are easier to attack than the positions actually espoused by these parties.

1. straw man • Stern misrepresents Conrad's position by claiming he suggests Thomas had a right to exclude gifts.

...there is no reasonable argument, as Conrad suggests, that Thomas ever had a right to exclude so many of these gifts from disclosure.

The text itself provides evidence that Conrad is not suggesting Thomas had a right to exclude gifts from disclosure. Instead, Conrad's letter states that Thomas has "filed amended financial disclosure statements that address several issues identified in your letter." This clearly indicates that Conrad acknowledges Thomas's obligation to disclose gifts and that he has taken steps to rectify his previous omissions.

This misrepresentation allows Stern to easily refute a fabricated argument, making Conrad's actual position appear weaker than it is.

2. straw man • Stern attributes a specific position to the Judicial Conference and the Supreme Court, i.e., that they believe certain persons are above the law:

...the Judicial Conference [is] doing a lot of what the Supreme Court did in the Trump immunity case--to say, "well these guys are so powerful and so important that their conduct must be assumed to be unpunishable and above the law."

This characterization oversimplifies and distorts the Judicial Conference's actual stance, which is more nuanced and focuses on jurisdictional claims and the interpretation of disclosure requirements. By presenting this exaggerated and easily refutable version of their argument, the text makes it simpler to attack and dismiss the Judicial Conference's position, fitting the definition of a straw man argument.

In the Trump immunity case, the Supreme Court's position was more nuanced than Stern suggests. The Court did not assert that the President is above the law or immune from all legal processes. Instead, it ruled on specific issues related to presidential immunity in the context of criminal investigations and subpoenas.

In Trump v. Vance (2020), the Supreme Court held that the President is not absolutely immune from state criminal subpoenas, but can challenge them like any other citizen. In Trump v. Mazars USA, LLP (2020), the Court ruled that Congress has the power to issue subpoenas for the President's financial records, but must meet certain standards and provide valid legislative purposes. These decisions do not place the President above the law, but rather establish guidelines for how legal processes apply to the presidency. The Court acknowledged the President's unique role in the constitutional order, but did not grant unqualified immunity or suggest that the President's conduct is unpunishable.