Connecting Clarence Thomas and the Nebraska filibuster

You can’t win a war if you won’t fight the battles

Welcome to a Sunday morning edition of Progress Report.

Let’s begin with a promise: If you make it all the way through today’s newsletter, you’ll be treated to an unsettling and inexplicably humiliating photo of Ron DeSantis in high school. No cheating!

And now a note: A number of state legislatures are now in the homestretch of session, so the next few weeks should be loaded with news about new laws and failed bills. I’ll be reporting on the big ones in the newsletter, but as a reminder, I’ll also be posting more updates in Substack’s new Notes platform, which is a bit like Twitter but more curated and without all the Nazis.

OK, now let’s get to tonight’s newsletter, which takes us from Nebraska to Minnesota to DC and parts in between.

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“I look forward to horrible conversations.”

Nebraska state Sen. Machaela Cavanaugh resumed her filibuster of a Republican-sponsored bill to ban gender-affirming care on Friday, taking her tireless, unapologetic protest into its eighth consecutive week.

Angered by a procedural motion used on Thursday by the Speaker to bring LB574 just one step away from passing, Cavanaugh called out Republicans who voted to move it forward.

“I had a conversation with Sen. Brandt and told him we’re never speaking again because he didn’t vote his conscience or his heart. And that’s going to be true for everyone,” she said. “Sen. Armanderiz voted against it and now voted for it; Sen. Hughes didn’t vote for it last time but did vote for it this time — clean. Just don’t talk to me again, please, any of you.”

As a reminder, Democrats are very much in the minority in the Nebraska legislature, and as we saw in Tennessee, Republicans are very willing to exact revenge.

Cavanaugh put a target on her back months ago, and on Thursday, she gave individual legislators every reason to take aim her. Unfazed by any potential future consequences, the senator on Friday renewed her promise to continue blocking every other bill on the docket, no matter how critical, until either Republicans agree to drop the trans care ban or the legislative session cones to an end. She also calmly excoriating Republicans for their cruelty.

“You should care about the policy in front of you. You should care about the unconstitutionality of the policy in front of you. You should care about the detriment that it will have on our economy, to our workforce, to our children, to our rights, to our liberties, to our freedoms,” Cavanaugh said.

Then she invited their disdain with what may have been her best line yet: “I look forward to horrible conversations.”

I think I’m going to put that in my email signature.

State Sen. Megan Hunt, who revealed earlier during early days of the filibuster that her son is transgender, has been even more strident in her shit talk. Hunt warned the bill’s Republican supporters that she would not so much as talk with them until the bill was pulled, and she has kept to that promise, going silent in their presence when not on the floor of the legislature.

Even then it’s been sparse, confined to responding to bigoted talking points from Republican colleagues during open debate and trashing them during her own time to comment.

“This place is a joke,” Hunt said on Thursday ahead of the vote. “You aren’t serious about progress, relationships, or the future of this state? We should have shared goals of workforce development, economic development. All you want to do is race to be the next Florida, the next Greg Abbott’s Texas, DeSantis’ Florida. It’s a race to the bottom, and I don’t know what you’re getting out of it.”

Not a single bill has been passed into law this legislative session, and with just 30 days left until recess, there’s a very real chance that Cavanaugh and Hunt do wind up killing the bigoted bill. But even if they fall short, their willingness to stand up for Nebraska’s most vulnerable children has brought exponentially more attention to the treacherous bill than it would have received otherwise.

With that earned exposure, the filibuster has galvanized communities and given them hope, as well as shown that Democrats are willing to face down threats and defy rigged processes in even the most dismal of times. It’s far too rare an occurrence — the last time I can remember something like this happening was the Sumer of 2021, when Texas Democrats left the state to block a voter suppression bill.

Oddly, Democrats have even more trouble taking this sort of stand when they’re the power in party, as they become too paralyzed by fear of either backlash from Republicans or having to actually deliver on their own campaign promises.

Neither is good, but the former is fixable, and the overall approach is beginning to change in fits and starts. In Minnesota, party leaders decided to ignore House Republicans’ moans about not having had enough input on a voting rights bill that their Senate counterparts blocked for years while in the majority. Instead of allowing Republicans to continue to assail a provision that requires more disclosure on campaign ads, Democrats pushed through the cynicism and passed one of their highest-priority bills.

AI generated this image of Clarence Thomas in jail

Laying Down the Law

Now contrast that with what we’re seeing from Democrats who have immense power but are afraid to use it.

It’s been a rough few weeks for Illinois Sen. Dick Durbin, and this week doesn’t look like it’s going to be any better. If things continue to trend in this direction for much longer, he may even be forced to do his job.

Durbin’s dismal April began with Paul Vallas, an unapologetically conservative enemy of public schools, getting his clock cleaned in the Chicago mayoral runoff election by the supposed underdog, progressive organizer Brandon Johnson. Durbin, the second-most powerful Democrat in the US Senate, could have stayed out of it, but decided to publicly endorse Vallas, who he called a “lifelong Democrat” despite ample evidence suggesting otherwise.

Durbin’s impact on the mayoral election was going to be minimal regardless of who he endorsed, but back in Washington, he’s at the center of the action — or lack thereof. Based on how he’s handling concurrent crises in the Senate, Durbin seems intent on preserving a crumbling institution in the middle of a war zone.

For more than two years now, Durbin, as the chair of the Senate Judiciary Committee, has shown little to no interest in overseeing a far-right Supreme Court that has reveled in partisanship and corruption. That indifference is now facing its greatest challenge as details about Clarence Thomas’s comically corrupt relationship with billionaire GOP mega-donor Harlan Crow continue to emerge.

Two weeks ago, when ProPublica broke the jawdropping news that Thomas has been secretly enjoying impossibly expensive luxury vacations ($500k for a trip to Indonesia?!) on Crow’s dime for more than two decades without reporting them as required. Outrage ensued from many quarters of the Democratic Party, but Durbin simply met the news with a yawn.

Here are the most forceful paragraphs in a long and limp statement released by the Judiciary Committee on the matter:

This behavior is simply inconsistent with the ethical standards the American people expect of any public servant, let alone a Justice on the Supreme Court.

Supreme Court Justices must be held to an enforceable code of conduct, just like every other federal judge," the statement continued. "The Pro Publica report is a call to action, and the Senate Judiciary Committee will act.”

Now, just to be clear, Thomas spent two decades accepting undisclosed gifts from a right-wing billionaire who often has business before the court. By jumping right to the ethical considerations, Durbin skipped over the fact that Thomas and Crow’s secret bromance likely broke the law. The committee’s statement all but gave Thomas a free pass, and with the coast clear, the reactionary grump issued his own rare statement, claiming to have done nothing wrong.

Feeling some heat from the weekend revelation that Crow has a garden filled with tributes to genocidal dictators and a collection of Nazi tchotchkes, Durbin and his committee then called on Chief Justice John Roberts to investigate his own court. When the news broke that Crow paid Thomas an absurdly inflated price for the honor of paying his mother’s mortgage, a transaction that was unequivocally illegal, Durbin simply repeated repeated the request.

Unless the senator has been on a secret yacht vacation of his own over the past nine months, he should be very cognizant of the fact that asking Roberts to investigate his fellow justices is tantamount to hiring a fox to solve a grisly homicide at the henhouse. And even in the event that Roberts did oversee an honest investigation, providing that kind of deference is still essentially announcing to the public that Thomas’s more than two decades of taking bribes is simply an internal matter, something to be dealt with quietly and then prevented from happening again in the event that Democrats ever win another government trifecta.

Instead, the Judiciary Committee has loosely committed to conducting one hearing, but again, that will be about ethics, not specifically Thomas’s very deliberate and unprecedented record of deceit. The committee made a grave error in not pursuing an investigation into Thomas’s knowledge of his wife Ginni’s prominent role in trying to overturn the election and then planning a violent attempt to overthrow the federal government. Now, the committee has a chance to make it right, but Durbin’s insistence on being a pushover is still holding strong.

For the past two years, Durbin has plodded on and on about the urgency of “restoring public faith in the Supreme Court,” as if a far-right, scandal-ridden, precedent-ignoring court that has regularly used an ill-gotten majority to strip tens of millions of Americans of their rights is worthy of anybody’s faith or respect. To legitimize this court and ideologically extreme Republican judges more generally is to signal respect for their horrible decisions, no matter how much they ignored the law to achieve their desired outcomes.

Accepting injustices delivered through perversions of the legal system is cowardly, and based on post-Dobbs election results, politically insane. National faith in the Supreme Court plummeted after the Dobbs decision, and its approval rating still sits below 50 percent. Maybe members of the Senate are cowed by all the cocktail party talk and deluge of PAC ads that are inconstant rotation in DC, but Democrats should be astute enough to know that they would experience zero tangible backlash for pursuing a serious case against a justice whose entire tenure has been clouded by controversy and already ranks as the most unpopular member of the court.

Sure, Republicans would get up in arms at any attempt to subpoena or speak ill of Clarence Thomas, but conservatives are also on at least year five of obsessing and conspiracy-mongering over Hunter Biden. They understand that they can create new realities through sheer repetition and conviction, and they exploit that power both through their own media platforms and the mainstream DC media.

A full investigation into Thomas’s increasingly long list of financial improprieties (this dropped Sunday morning) would likely uncover far worse ethical lapses and clear violations of the law. It’s unlikely that the Republican House would ever move to impeach Thomas, but depending on the findings, it’s possible that legal trouble and/or pressure from John Roberts could compel Thomas to step aside. And if none of that happens, Democrats could use Clarence Thomas as a potent issue that tarnishes the Republican Party more generally.

If this had been a Democratic justice, the shrieks and howls that would emanate nightly from every TV tuned to Fox News would finish off the hearing of many of the network’s viewers. There would be diminishing returns in trying emulate the right’s uniquely attuned and dangerous weapon of mass delusion, but it’s worth remembering that the conservative movement has spent six decades proselytizing the idea that government cannot be trusted, and the last three decades in particular growing an increasingly conspiratorial and paranoid worldview.

Conservatives can now whip up hardcore followers into a frenzy over just about anything, and while the fits are often fleeting tantrums over some contrived outrage (e.g. their sobs over Bud Light last week), having a narrative so ingrained in the public conscious should be a long-term goal.

The White House was handed a golden opportunity to strike a significant blow against the legitimacy of the judiciary’s right wing cabal when District Court Judge Matthew Kacsmaryk decided to roll back FDA approval of mifepristone, one of two pills used in medicated abortion. Kacsmaryk, one the many unqualified far-right hacks that Donald Trump and Mitch McConnell imposed on the judiciary, had no legal authority to pull the drug from the market, and the White House would have been on safe legal ground to tell the FDA to simply ignore the decision.

It wasn’t much of a shock when President Biden decided against ignoring the ruling so as to not create a precedent; he’s evolved on traditions like the filibuster, but he’s still an institutionalist at heart. Still, worrying about setting precedents when objecting to a mendacious ruling that already broke all precedents is an exercise in myopic Beltway defeatism.

Deference No More

Durbin has arguably the most important job on Capitol Hill for the next two years. Democrats simply have to confirm as many federal judges as possible, but they can only do so when each of the party’s committee members is in town and able to vote. Since mid-February, committee member Sen. Dianne Feinstein has been recovering from a case of shingles at her home in San Francisco, and this week, Durbin acknowledged to CNN that the 89-year-old lawmaker’s absence has slowed down the confirmation process.

The comments spurred Feinstein’s office to put out a statement promising that she’d be back… at some point, whenever it is that her doctor clears her to fly. The grim update triggered a fissure of sorts, as some commenters and a handful of Democrats called on Feinstein to resign while others insisted that she should keep up the good work. Nancy Pelosi made a particularly specious and unhelpful argument for the status quo.

It was only under withering pressure that Feinstein asked to be temporarily replaced on the Judiciary Committee, a move that will require Republican cooperation. Durbin has remained silent on the subject since his initial comments, which were made only in response to a reporter’s question.

Had Mississippi Sen. Cindy Hyde-Smith simply returned her blue slip and allowed the judge that Biden nominated to a trial court in her home state to move forward, nobody would have had occasion to ask Durbin about Feinstein and the committee’s ability to move other nominees through the pipeline.

Feinstein would have continued to “serve” on the committee, further gumming up the works for Democratic nominees. And that’s not even the worst part of this whole mess. Instead, the honor goes to the fact that after Republicans jettisoned the process, Democrats are once again using the antiquated blue slip system that allows senators to unofficially veto a judicial nominee for their home state.

A relic of the olden days when the Senate was built on ideological diversity and basic comity, the blue slip process should have never been restored. Naturally, it’s Durbin that brought it back (and made it less transparent!), and to this point he refuses to budge on it. The White House has avoided weighing in on the issue, but if DC Democratic leaders don’t want to abandon future generations to a hellish future shaped solely by Trump judges, they must let go of the hollowed out traditions of their past.

And now, your prize for making it this far:

No, these were not taken from an unaired 21 Jump Street Episode

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