Of Senators and Strawmen

Strawman (n.): a bogus, distorted or deliberately flawed interpretation of an otherwise valid position that has been altered so it can be more easily attacked, delegitimized and disassembled (hence the straw man metaphor) before the eyes and ears of an otherwise impartial audience unfamiliar with the facts and history of an issue or case.

The Senate Judiciary Committee held a hearing yesterday on Fifth Circuit nominee Michael Wallace. The American Bar Association's Standing Committee on the Federal Judiciary has unanimously rated him “not qualified” due to concerns, expressed by a large cross-section of his legal community, that he is not open-minded, free from bias or committed to equal justice.

Faced with these uncomfortable facts, Senate Republicans pulled out the old playbook, setting up one strawman after another to criticize the ABA and defend their beleaguered nominee. Unfortunately for them (and here we're principally referring to Senators John Cornyn (R-TX) and Jeff Sessions (R-AL)), ABA representatives quickly exposed some of their misrepresentations for precisely what they were. A couple of examples:

* Senators Cornyn and Sessions said the ABA was criticizing Mr. Wallace merely for representing his clients. No, Standing Committee member Kim Askew cogently explained, the ABA clearly understands that lawyers are obligated to represent their clients zealously. The problem in Mr. Wallace's case is that he has gone beyond zealous advocacy and pushed what a number of people see as a personal agenda, one that stands athwart existing law.

* Senators said Mr. Wallace is being criticized for simply carrying out the wishes of various bosses, including then-Congressman Trent Lott and President Reagan. Again, no. He is being criticized because, as he conceded at several points yesterday, what he did for those bosses reflected his own views -- e.g., pushing for racially discriminatory Bob Jones University to regain tax exempt status, limiting the reach of the Voting Rights Act, and trying to gut the Legal Services Corporation.

* Senator Cornyn said people are calling Mr. Wallace a bigot. No, no one's saying that. What they're saying is that he has a personal agenda -- an agenda from which people fear he would be unwilling to depart as judge -- that has long been adverse to meaningful enforcement of civil rights laws. There is a difference between a bigot and a person with a view of the law harmful or insensitive to minorities. Mr. Wallace has been criticized for the latter, not the former.

Despite the best efforts of Senators Cornyn and Sessions, and despite the lack of interest by most members of the Committee (few others showed), the testimony of the ABA representatives succeeded in putting the focus back on the real issues: Mr. Wallace’s “career-long antipathy to…basic civil rights touchstones,” his efforts to dismantle the Legal Services Corporation while leading it, his long-discredited positions undermining the authority of vital regulatory agencies, and textualist views so extreme that he defended tax exemptions for religious universities that practice racial discrimination.