The Nebraska Cornwhisker Scenario (U.S. Senate Edition)

As polling for incumbent Montana Senator Jon Tester (D) looks increasingly grim, it becomes increasingly hard to see how Democrats maintain control of the Senate this election. But because the universe's sadistic screenwriters love a good out-of-nowhere twist, there may be one last shot at reprieve from the most unlikeliest of places: Nebraska.

Something really interesting is happening in Nebraska, where Dan Osborn, who is running as an independent, is leading incumbent Republican Deb Fischer in a couple of new polls. (Fischer is being hurt by among other things her decision to ignore her previous commitment not to run for a third term. Her explanation is that she just hadn’t realized that seniority is a thing in the US Senate.)

Osborn, a former union leader, is pro-choice and anti-billionaire, which are two unacceptable positions in the contemporary GOP caucus, but still the best that can be hoped is that he would be more or less the Nebraska version of Joe Manchin.

He’s promising not to caucus with either party, but that’s not realistic, given that caucusing is how committee assignments are handed out. If the Senate ends up 50 GOP 49 Dem and Osborn, and Harris wins, Osborn will be in a position to essentially hand control of the Senate to the Democrats, which of course will given him enormous negotiating leverage. Assuming Tester loses and the Dems hold all the other genuinely competitive seats, that will in fact be the split, so this is definitely a race to watch closely.

While both campaigns are issuing dueling internal polls showing them ahead, Fischer hasn't led in an independent poll since August; the last independent poll of the race (at the end of September) had Osborn up five.

If Osborn wins, I do think it is most likely he will end up caucusing with Democrats (after extracting some monster concessions) -- partially because it'd be weird to run against a Republican in the general and then caucus as a Republican, partially because that's what all the other recent "Independent" Senators have done. But I do wonder at the possibility that he tries to create some sort of centrist junta to run the show,  like we've seen in some state legislatures (Alaska, New York). It'd probably be Murkowski and Collins on the Republican side, Angus King on the Dem/Independent side -- maybe someone like Bob Casey joins them from the Democrats too? Hard to know the exact personnel.

Obviously, from a Democratic vantage point such a setup would be (a) better than GOP control of the Senate and (b) worse than Democratic control of the Senate. But I'm inclined to think that such a setup would be closer to better for Democrats (though I may be unduly influenced by just how catastrophic full GOP control of the Senate would be). It would probably mean that more ambitious Democratic priorities (including things like DC statehood) would be DOA. But I do think it would mean that a President Harris could get (most of) her cabinet and other major appointees through, which is not something we can take for granted under Republican rule. At the very least, it would enable a semi-functioning government, which is a lot more than we can say if Republicans control the Senate and decide to filibuster absolutely everything.

Assumption of Pregnancy Risk

A Nebraska Republican, State Senator Steve Halloran, has challenged the notion that the post-Dobbs world "forces women to be pregnant" by arguing the following:

“No one’s forcing anyone to be pregnant. Pregnancy’s a voluntary act between two consenting adults.”

Immediately, one might note that both the "consenting" and the "adults" parts of that sentence are not at all necessary. And that is no small elision! But beyond that, pregnancy isn't really an "act". It's a status. People who become pregnant consent to the status of being pregnant if and only if they are permitted to terminate that status and choose not to.

What Halloran is trying to gesture at is the notion that any person who consents to sex, also consents to becoming and staying pregnant. But we don't typically call that sort of downstream effect "consent". Rather, the phrase Senator Halloran really is going for, but doesn't want to use, is "assumes the risk".  We might say that if I mouth off at strangers in a seedy bar, I assume the risk of getting punched. That is not the same thing as saying I consent to participating in a bar fight.

Halloran, for his part, believes that if a woman has sex, she assumes the risk of becoming pregnant and can therefore be coerced into preserving that status regardless of her actual preferences or any intervening changes in circumstances (whether those changes be health-related, financial, emotional, familial, or anything else). In this, he is reflecting a common Republican view. Pregnancy, as far as the GOP is concerned, is a risk sexually-active women take. And having assumed that risk, any further consent they might want to offer or withdraw is wholly and utterly superfluous. Once a woman becomes pregnant, consent for Republicans is perhaps a nice to have, but absolutely not a need-to-have.

How Much Destruction Has Pearson v. Callahan Wrought?

Today, the Eighth Circuit ruled en banc, in Kelsay v. Ernst, that a police officer violently tackling a non-violent, non-threatening, non-resistant 5'0 130 lbs woman suspected of a misdemeanor, breaking her collarbone, did not violate anyone's clearly established right to be free from the use excessive force. To add insult to injury, the woman the police assaulted was the nominal victim that brought them to the scene -- a friend of hers had tried to toss her into a public swimming pool, someone thought he was assaulting her and called the cops, she tried to tell the police that it was just horseplay and they shouldn't arrest him, and so they naturally responded to this innocent misunderstanding by breaking her bones and arresting her too (for obstruction of justice).

The vote was 8-4, Judge Colloton writing for the majority, with Chief Judge Smith and Judges Kelly, Grasz, and Erickson dissenting.

Sadly, "Eighth Circuit is fine with police officers violently assaulting unarmed, non-violent individuals" is scarcely even news at this point. But Judge Grasz -- dissenting separately (he also joined the main dissent from Chief Judge Smith) -- also made a point to call out the majority for declining to decide whether, going forward, it is indeed unconstitutional to violently tackle a non-violent, non-threatening, non-resistant suspected misdemeanant. This refusal is permissible thanks to a 2009 case called Pearson v. Callahan -- where the Supreme Court said that lower courts could toss civil rights lawsuits solely upon finding that the alleged constitutional violation's unlawfulness was not "clearly established" at the time of the injury, without ever deciding whether the violation actually was unconstitutional. The paradox is that, by refusing to make the latter decision, the law remains not "clearly established", and the government conduct -- even, it must be stressed, conduct that actually is unconstitutional -- is permitted without consequence indefinitely into the future. Even if (and I know this sounds crazy) it is true that violently tackling non-resistant, non-threatening suspects is unconstitutional, the effect of Pearson is that courts never will be compelled to declare it so, and so this unconstitutional abuse can go on in perpetuity.

I'm honestly not sure if any case has a worse ratio of destructiveness-to-public-profile than Pearson. Qualified immunity jurisprudence -- and in particular, the incredible stinginess through which the courts assess whether a given right is "clearly established" -- would still be a disaster without it, but Pearson has turned it into a farce. As Judge Grasz (and several others, including other right-wing stalwarts like Judge Don Willett on the 5th Circuit) have observed, Pearson has locked victims of excessive force into a prison of the court's own jurisprudence, and then allows judges to toss away the key.

If there's anything positive to say here, it's the continued good work from Judge Grasz, who is rapidly becoming one of the great surprises on the Eighth Circuit since his confirmation in 2017 (he had been rated "not qualified" by the ABA after his nomination by President Trump, but was confirmed anyway by a 50-48 vote).

Spot the Problem!

Regarding Tom Osborne, former Nebraska football coach and then Republican congressional representative:

The penultimate chapter in the book, “A Difficult Road to Walk,” is an in-depth exploration of Osborne’s Christianity — he notes that he never infringes on Sundays during the season, so his players can attend services, “Protestant, Catholic or Jewish”

Via.


Nebraska Senate Ad

The DSCC hits the Republican front-runner, former Governor and Agricultural Secretary Mike Johanns.



Kos likes it and thinks the "quitter" narrative is effective. I kind of think it's a cheap shot. Politicians of all stripes resign from their current post while running for the next one. This isn't aberrant behavior. It's typical -- even expected. When Joe Lieberman didn't resign from the Senate to run for Vice President, folks were really annoyed at him. A lot of the time, the argument is made that a Senator or Representative whose running for higher office can't concentrate on representing her district, and so should resign to focus on her campaign. This ad is the epitome of taking a neutral or beneficent act, saying it in a nasty voice, and hoping uninformed voters will take it badly.

It's not quite at the "I hear his sister is a thespian" level, but it's in that family.

The Trial of God

One of my favorite pieces of literature of all time is Elie Wiesel's play The Trial of God. It's very intense, very deep, very theologically challenging, and very, very, good.

Today, in a lighter vein, Nebraska State Senator Ernie Chambers has announced he is suing God, "seek[ing] a permanent injunction ordering God to cease certain harmful activities and the making of terroristic threats." Though the point is to make a statement about frivolous lawsuits, Chambers has gone ahead and filed the case.

I've always thought it would be a neat law review article to try and tease out the various procedural and substantive questions that might be raised by a "trial of God." More of a fun-piece than a tenure-piece, but you never know: even the perfect crime article saw its day in court.