Posts Tagged ‘Supreme Court’

The Thinker

Republicans reestablish the patriarchy

For Republicans, Donald Trump’s nomination of Brett Kavanaugh as the justice to replace Justice Anthony Kennedy on the U.S. Supreme Court is like winning the Triple Crown. It’s the greatest news possible for them. This is because with Kennedy’s departure and Kavanaugh’s likely lifetime appointment, Republicans will finally formally control all three branches of government.

The Supreme Court though has always been the one that has mattered the most. It’s just that for decades it has teetered between liberal and conservative justices, with Justice Kennedy usually the one making the final say on controversial issues like gay marriage. Arguably Kennedy was our only truly impartial jurist. That should disappear if Kavanaugh dons those black robes, which means it will be rare at best to get rulings without a Republican take on the law.

Notice I did not say a conservative take on the law, because the so-called conservatives on the court have been anything but that lately, frequently breaking precedence with previous courts. Traditionally, conservatives have respected jurisprudence. Kavanaugh’s record as a judge shows little respect for precedence. He has argued that the president has no checks on his power other than impeachment and removal. This would be news to previous courts such as the one that required President Nixon to turn over tapes to the Watergate special prosecutor. A real conservative should deride any judge that thinks anyone is beyond the law, but that’s what Kavanaugh has argued about the president.

I hesitate to tell our Democratic senators to give up on opposing his nomination. He has at best a 1:10 chance of being rejected. I’d like Democrats to fight dirty because that’s how Republicans won this trifecta. They fought dirty for decades to push their power far beyond the consent of those they govern. This nomination though is vindication for them in a strategy that clearly worked. They out-hustled Democrats by using tactics that were minimally suspect and maximally appalling.

Political gerrymandering is not illegal since the Constitution delegates voting rules to the states, at least those laws not dictated by federal law. The Voting Rights Act was one tool that for decades made it harder but clearly not impossible to disenfranchise voters. All that changed in Shelby v. Holder (2013), which overturned the rule that certain states needed preclearance by the Department of Justice before changing their voting laws. Five grumpy “conservative” justices (Roberts, Scalia, Kennedy, Thomas and Alito) thus cemented voter disenfranchisement as an acceptable political tactic. Within 24 hours of the decision, Alabama announced that it would require photo identification at the polls, a direct result of this decision. Alabama simply could not wait to disenfranchise minority voters.

So not only are we likely to have a true “conservative” court soon, but the patriarchy is fully in charge, which is what really makes them giddy. The five “conservative” justices are all men. These five men will likely rule within the next few years that women no longer have control over their own bodies, when they allow states to outlaw abortions. Twenty-two states have laws in place that will immediately outlaw abortions when it is legal to do so. This strangely includes Massachusetts where I live, which never got around to overturning its law.

You would hope that conservative justices would be pro-freedom, but if you look at their actual rulings, it’s pro-freedom mostly for people a lot like them: white, rich and male. It’s not for women; at least not after Roe v. Wade gets overturned. It’s clearly not for blacks and Hispanics, who must jump through increasingly onerous hoops to vote if they can vote at all. It may not be for gays and transgender Americans, whose recent expanded rights to marry and use bathrooms of their gender are at jeopardy again. Their gay marriage ruling may get overturned since Kennedy is no longer the swing vote.

It’s all pretty bleak unless you are one of these “conservatives” that adhere to two levels of justice: one for people like them and a harsher one for everyone else. For them, this is good and with five “conservatives” on the Supreme Court they lock down the power that matter most to them – the power to make people do what they want – for decades to come.

There are some things that Democrats can try. They can hope to stay united and peel off Republican senators Murkowski and Collins. This probably won’t work, which is why I gave it 1:10 odds. They could refuse to vote on the nomination although it’s unclear if this would change the outcome. They could try to shut down all Senate business until after the midterms when Democrats might control the chamber again. Or they could insist that President Obama’s nominee, Merrick Garland, first get the vote he was denied in simple fairness.

Of course, it’s fighting dirty that Republicans do best. Senate Majority Leader Mitch McConnell’s refusal to bring Garland’s nomination up for a vote was very dirty and unprecedented. It would be fitting if Democrats refused to move this nomination until this error is corrected. Republicans though have no conscience. This tactic never bothered them at all. With them, it’s always party before country.

Still, demographics do matter. Our country is coloring up and becoming more liberal and secular every year, in spite of Republican actions to stem this tide. Democrats and independents must crash the gate somehow and regain control despite the wholesale gerrymandering and voter disenfranchisement unleashed by Republicans.

The far right Infowars talk show wacko Alex Jones famously predicted that Democrats would start a new civil war this July 4. Republicans would be wise to remember that the people have a right to revolution to overthrow unjust governments; it’s right there in the Declaration of Independence. Through dirty and undemocratic tactics, Republicans have created a fundamentally unjust government that have disenfranchised large blocks of citizens. These forces cannot be forever bottled up against the consent of the governed.

 
The Thinker

The Justice Kennedy resignation and dialing it up to 11

The retirement of Justice Anthony Kennedy, while not surprising, nonetheless has stirred up a hornet’s nest. Our only swing justice, it means that anyone Trump nominates is very likely to vote reliably conservative. Obviously this has huge implications, the most obvious of which is that Roe v. Wade is now under serious jeopardy. A 5-4 conservative court won’t wait long before accepting a case that will give antiabortionists the win they’ve been craving since 1973. Women are going to become chattel again, at least in some states that have decided that even before three months of pregnancy they don’t have the right to control their own pregnancies.

Such a court though is unlikely to declare that abortion is unconstitutional nationwide. Rather, it will give states permission to outlaw abortion within their boundaries. States like Texas have already made it impractical for most women to get abortions, so in some cases this won’t change too much. Abortion should still be available to those with the means to cross state lines. Of course, the women conservatives most want to disempower are those who are poorest, which should be odd because at the same time they will expect these women to support these children they will be forced to bear with little in the way of government help.

There will be plenty of other ways that a conservative court will make the vast majority of us unhappy. And the conservative majority could easily grow, as its liberal members tend to skew toward the older side. As bad as Kennedy’s retirement is for progressives, it could have been worse. Instead of Kennedy, it could have been Justices Ginsburg (85) or Steven Breyer (79) that opted to retire instead, or simply died in office. In his last year, Justice Kennedy has been no friend of progressives.

The script has been memorized; the die has been cast. We know how the next few months are likely to unfold. Trump will pick some nominee off his ultra conservative list and is likely to do it sooner rather than later. Senate Majority Leader McConnell will bend over backward to move the nomination for a vote ASAP, bypassing the Judiciary Committee if possible. There is a little hope that the Senate will ultimately vote against the nomination. Senator John McCain presumably won’t make it back to Washington to vote one way or the other, and may pass away during the interim. So in theory just one Republican senator breaking ranks could undo the nomination. Senators like Maine’s Susan Collins or Alaska’s Lisa Murkowski are possible swing voters. At best, the Democrats’ odds are 50:50. Trump could dramatically improve his odds by nominating someone just a tad mainstream. In a way, it’s better for Democrats if he doesn’t, providing the nominee ultimately fails to be confirmed.

So everyone is hoping a nomination will fail and that somehow Democrats can hang on through the election and retake the Senate. At best the odds for Democrats is turning the Senate are 50:50 too, so this is quite a long shot as well. If they control the Senate though they definitely control the nomination process as well. That’s their best shot at replacing Kennedy with someone similar to him.

Since McConnell created a new rule that deferred action on President Obama’s nominee, should Democrats regain the Senate then they will be under pressure to get even. One idea going around is that Trump’s nominee should be denied consideration because Trump is under active criminal investigation. If you believe in the Law of Karma, it would be appropriate for a Democratic Senate to refuse to vote on a Supreme Court nomination until the 2020 election. Democrats though aren’t very good at being evil. Republicans though have perfected it.

And that’s what this nomination is all about, really: the culmination of decades of work by Republicans to gain ultimate power while consistently ranking up a minority of votes nationwide. At best their approach has been morally dubious. Republicans have been ruthless, taking a mile when they should have taken an inch. They had no qualms about gerrymandering districts to the extreme and openly suppressing the voting rights of those who are likely to vote against them. Justice Kennedy helped cement these oversized privileges with recent votes on gerrymandering cases that came before the court. Ultimate power though rests not in the presidency or in Congress, but in the courts because of federal judges receive lifetime appointments.

Democrats’ hope of course is for a blue wave this November. Democrats were already fully engaged but this retirement will only add to their animus. It may also bring Republicans out to vote disproportionately too. The case for Democratic control of Congress though only grows as a result of this retirement. The already high stakes have grown even higher.

Our cacophonic political scene already deafening is going to grow even louder as the amp now gets cranked up to 11.

 
The Thinker

Dear Supreme Court: please free our political moderates

The Supreme Court has agreed to hear a case on whether Wisconsin’s state assembly map constitutes an illegal partisan gerrymander. The court has never struck down a voting district map based solely on its political boundaries, so it’s unwise for those who would like to see fairer voting districts to get their expectations up.

I’m not enough of a lawyer (not being one at all) to understand the legal issues, other than the constitution specifically delegates voting criteria to the states. The Voting Rights Act requires that certain criteria (like race-based criteria) cannot be used in drawing maps. This hasn’t kept states from doing this anyhow. In most cases courts strike down these maps after an election where they are used to partisan advantage. New districts are drawn that are generally still illegal, so the cycle seems to continue forever and never really gets settled. At least that’s been the case since the Supreme Court’s 2013 ruling that certain predominantly southern states no longer need to have their voting maps cleared in advance.

State assembly maps are where the real power is, because generally they draw the political boundaries for both state and federal voting districts. Republicans used this to great effect after the 2010 election when they won Congress and state houses. Voting districts were required to be redrawn based on the 2010 census so Republicans used it to lock in their power at least through 2020. Quite frankly, this has a lot to do with the mess we are in at the moment. These highly partisan voting maps as well as state voting restrictions that don’t pass the smell test have given Republicans enormous political clout that far overstates their power if voting districts were created fairly and impartially.

Pretty much everyone agrees that our politics are a huge mess. This is a direct result of extreme gerrymandering. I sure hope the court finds political gerrymandering illegal, but most likely they will not. I hope this not just because I necessarily am pining for more Democrats in office. I say this because to end our political mess we need lots of moderates in office. I can’t see any way to bring moderates back into politics unless we end political gerrymandering.

Democrats may be in the minority in Congress, but it’s becoming even harder to find any moderates left in Congress. Moderates of both parties used to form the political center. Their presence allowed government to function because they facilitated political compromise. These days significant change is only possible if one party controls both Congress and the White House. Usually when that happens you get laws that only appeal to the rabid wings of the party. Trumpcare is liked by only 16% of Americans, with even only 34% of Republicans liking it, but that doesn’t mean that Congress won’t pass it anyhow.

If it happens it will be a law of immense cruelty. Make no mistake: the Senate’s current version of the bill has nothing to do with improving health care. That’s merely a smokescreen. It has two principle purposes. The first is to give tax cuts to the wealthy. Republicans see it as restoring tax rates for the wealthy to what they were before the Affordable Care Act. The second is to end Medicaid as an open-ended entitlement program. For more than fifty years it has set a floor that no citizen could sink beneath. By limiting federal contributions, it encourages states to race toward the bottom: limiting enrollment and cutting benefits. In effect, the poor will simply get poorer, making the wealth gap even worse than it is now. The effect is pretty obvious: lots of people are going to die prematurely and painfully. It’s an outcome that only the Marquis de Sade and today’s Republicans can love.

All this is from a supposedly “pro-life” party. It’s obviously quite the opposite. I’ve discussed these gaping inconsistencies in many other posts, so I won’t revisit them here. What I will note is that whether it is Republicans who want to kill off their poor constituents because they don’t believe the rich should help subsidize their health, or whether it’s far left partisan Democrats who won’t accept anything less than single-payer health insurance, ideally at government-run hospitals and healthcare centers like the Veterans Administration, these are solutions favored by a fringe. Ask your typical man or woman in the street if they favor either of these approaches and you are likely to get a resounding “No!”

But you don’t see many of these people in Congress because gerrymandering conspires to leave them out. That’s the real crime of gerrymandering: trying to force the government to be run by the extreme partisans when it needs the consent of the governed, which includes a lot of moderates. Gerrymandering extends political dysfunction, empowers people that hate their own government, fosters conflict and may pave the way toward a new civil war.

All of this is preventable if government can become of, by and for the people again. With moderates forming about 35% of the population, but likely represented by no more than 10% of legislators their interests are simply not getting considered. This is political disenfranchisement on a massive scale. Blacks may be disproportionately under represented, but at least these highly-partisan voting maps gives them some diluted representation. Moderates though have little to no representation. Unless the Supreme Court steps up and declares political gerrymandering unconstitutional or (much more unlikely) Congress sees the light and acts against their own partisan interests to enact such a law, it’s not hard to predict that our government will become more detached from its citizens, ultimately representing mostly a highly partisan few. That’s a recipe for national disorder that only the Kremlin would approve because it is simply not democratic. It’s not even republican.

So the Supreme Court could become the savior of our democracy if they find the legal standing or discipline to do so in their upcoming decision. If there was ever a reason for Americans to pray, praying the Supreme Court sees the light on this seems a priority for religious Americans of all types.

 
The Thinker

Justice Scalia’s untimely departure

One week later and I’m finally back blogging. Mostly I was out of town attending my father’s memorial service and all the family events that go along with it. It was all quite a blur. While my family grieved, reconnected and moved forward, the world kept moving forward too, I just wasn’t paying much attention. In politics this included a Republican and Democratic debate (which events forced me to miss) and the sudden death of Justice Scalia on Saturday, which I did not miss.

We were winding down from family events at a friends’ house when the news of Scalia’s death was announced. Almost in the same breath everyone had moved past the death of a man and onto the many political implications of who would replace the conservative jurist. It was embarrassing on both sides. Within an hour Senate Majority Leader Mitch McConnell (KY) announced the Senate would not take up the confirmation of an Obama nominee. A couple of hours later President Obama was saying nice things about Scalia while letting everyone know he was going to nominate a new justice anyhow. Scalia’s body had not even cooled!

And then the real craziness began. Candidates for president started chiming in not on Scalia’s career but on what they thought should be done about his replacement. CNN and all the news channels went into overdrive with mostly poorly informed opinions about what this transition means. Liberals cheered while conservatives started filling the moat with crocodiles and raising the drawbridge. In some ways this was everyone’s worst nightmare. The timing of Scalia’s death was disastrous. Even Democrats would have preferred that he finish the current year before expiring. As if we needed one more reason to heighten the importance of the coming election!

I’ve been sorting out all the opinions and analysis out there about what it all means. As a public service, I thought I’d distill it all down for you.

First, this is going to upset the Supreme Court applecart for the first time since Richard Nixon was president. For four decades the court has been balanced between liberals and conservatives, with decisions generally leaning toward the conservatives thanks to mostly Republican presidents. Scalia of course is perhaps the most prominent conservative on the court and certainly was its loudest one. Brass and opinionated with little interest in judicial decorum, he mouthed off all the time about stuff he should have saved for a memoir. Virtually anyone who replaces Scalia will by definition be less conservative than he is. The only chance Republicans have is if (a) a Republican president is elected in November, (b) he turns out to be very conservative and (c) the Senate does not switch to a Democratic majority again, which is at least a 50:50 probability. So it’s virtually certain that the balance is going to be tipped, at least in the more moderate direction, whether it happens soon or with a new president.

Second, not confirming a new justice will in many ways make things worse for Republicans. Scalia was a reliably conservative vote on the court, so with just eight members during this term decisions will break toward the liberal side. Tied decisions will either revert to the decision made by the appellate court or justices could decide to rehear the case at a later time. Since judges appointed by Democratic presidents control roughly two thirds of the appellate courts, most decisions will bend left minus Scalia’s vote. If the Senate approved another justice it would allow the possibility that at least some of these cases could bend toward the right. Another possible ripple: it may give Democrats extra incentive to turn out to vote, perhaps in larger numbers than Republicans, in which case it may enlarge expected electoral losses by Republicans. In short, by being unnecessarily obstructionist and dogmatic, Senate Republicans are effectively stomping on their own feet.

Third, there is nothing in the constitution that says the president may defer action simply because he is in his final year of office. President Obama is required to make a nomination. Not making a nomination would actually be grounds for his impeachment. The Constitution is quite clear in the Appointments Clause by using the word shall (which is legally binding); it’s a solemn duty he must perform. The Senate must approve or reject the nomination. Excessive delays by the Senate are potentially unconstitutional too. We could see a court case to determine if the Senate must vote on appointments within a reasonable period of time. So suggestions that Obama simply defer nominating anyone would be perilous politically and constitutionally.

Fourth, there is legal precedent for Obama to make a recess appointment for a temporary justice to see out his term. The Senate is currently out of session and a previous Supreme Court ruling stated that such appointments could be made if the Senate is out of session for three days or more. Justice William Brennan got a recess appointment this way from President Eisenhower; Brennan was subsequently confirmed. I don’t expect Obama to go this route but if Republicans are adamant that they won’t hold a vote until after he leaves office, this is one method that appears to be legal that he could use.

Fifth, Scalia’s death and the extreme reactions by Republicans to filling his seat point to the tenuous hold that Republicans have on Congress. It doesn’t seem that way, particularly with their commanding majority in the House. Their House majority is largely a result of gerrymandering following the 2010 census. However, America’s demographics are quickly changing in a more liberal direction. Not only have Republicans done little to address these facts, they’ve made their problem worse by doubling down on policies that inflame voters that might otherwise vote for them. My suspicion is that ten years from now we’ll look at Scalia’s death as the beginning of the end of Republican control of government.

 
The Thinker

Kim Davis’s rights are apparently more equal than yours

Kim Davis, the elected county clerk of Rowan County, Kentucky is sitting in a jail in Ashland, Kentucky tonight. She is in jail after being held in contempt of court by a U.S. district court judge for refusing to issue marriage licenses. The thrice-married Davis has been refusing all applicants (gay and straight) since the Supreme Court ruled in June that no state could prohibit two people of the same sex from marrying.

Davis says she cannot issue marriage licenses to gays and lesbians because gay marriage contradicts her sincerely held religious beliefs, i.e. her freedom of religion. She is an apostolic Christian and she believes that marriage can only be between a man and a woman. Five of her six deputies who were also called to the hearing have seen the light and plan to issue marriage licenses starting tomorrow. The other deputy, curiously Davis’s son, is not in jail.

Unsurprisingly this is national news. Both sides have been hanging outside the courthouse yipping it up at each other. To most Republicans it’s pretty cut and dry stuff. They have been promoting freedom of religion for a while as a way to selectively circumvent the law. Unfortunately for Davis, her case went all the way to the U.S. Supreme Court, which ruled that she must follow the law. Davis meanwhile seems to be suffering from a case of cognitive dissonance, unable to reconcile her oath to uniformly execute the law with her religious beliefs. It looks like God is winning, at least for the moment. It remains unclear if she will see the secular light, linger indefinitely in jail as a cause celebre or do the honorable thing for someone in these cases: resign.

Republicans definitely seem energized by this “freedom of religion equals freedom to discriminate” argument. This is hardly surprising but it certainly is curious. An oath is a solemn secular promise, and Davis swore it when she entered her elective office that pays a comfortable $80,000 a year (great money in rural Kentucky). An oath is a requirement of being in the civil service. I ought to know because for thirty-two years I was a federal civil servant. When our careers began we all raised our hand and swore the same oath: that we would faithfully serve the constitution of the United States. (Curiously I had to end it with “So help me God,” although I was an agnostic.) Davis is not a federal civil servant, but it’s likely that her oath contained similar words.

While I was a civil servant, upholding the oath was not just the law and a good idea, not following the oath was grounds for my dismissal and/or possible other criminal penalties. In 32 years I served five presidents from Jimmy Carter (very briefly) to Barack Obama. The presidents I served frequently wrote stupid executive orders, and some of them were deeply offensive to me. Congress wasn’t much better with the laws it was passing. For much of that time I was a Unitarian Universalist. Although its adherents have no creed to profess, lots of stuff I had to do contradicted my religious beliefs. The first part of my career was with the Department of Defense. I aided in the printing of maps and charts used to direct our armed forces, sometimes to kill people. As part of holding a security clearance I could not disclose things that I knew. To this day I still can’t, and some of the stuff I learned shook me to the core and was both personally offensive and violated my religious beliefs. To get a security clearance in the first place I had to swear I wasn’t a homosexual. (This fortunately has changed.)

While working at a more benign department, Health and Human Services, I had to sometimes provide support to the office that promoted President Bush’s faith-based initiatives. This was pretty obvious to me a violation of the boundaries between church and state, but I shut up about it while expressing my opinions freely outside the office. I didn’t like it, but Bush had been constitutionally elected and if it was unconstitutional, it was an issue for the courts. So like Kim Davis, there were many aspects to my job that rubbed me the wrong way. I knew if it became too much to bear that there was an alternative: resign and find a job without these conflicts. Davis has that option right now. All she has to do is use it and she gets a get out of jail free card, quite literally.

Oaths are there for a very good reason: government can’t run if civil servants can selectively decide which parts of the law they will follow or ignore: laws can become toothless if they are not uniform. These same Republicans who are gung ho supporting Davis’s religious rights would not for a moment allow it from a soldier who refused to fight. “It’s against the commandments to kill, sergeant. Sorry, I’ll opt out of this battle. Maybe the next one if it’s not lethal.” It won’t work for the food inspector with a sincere religious belief against GMOs. It won’t work for the judge who refuses to give a mandatory sentence. Our constitution says that the Supreme Court gets to decide what is constitutional, the court decided it about gay marriage and it conflicted with her religious beliefs. The constitutional approach if she doesn’t like their decision is to push for a constitutional amendment prohibiting same sex marriage.

Instead, Davis’s response was to deny all who came to her the right to marry. In doing so she violated couples’ civil right to marriage and all the benefits that come with marriage. Her “right” to freedom of religion effectively trumped the rights of lots of others and put others through unnecessary hassle, expense and emotional trauma.

It should be obvious that any right that restricts someone else’s rights is not a real right. But that’s essentially the argument she and Republicans are making, and in her case she is doing while executing the law. If all civil servants had the right to rewrite or sidestep laws they don’t agree with while retaining their position, government would be mostly dysfunctional.

Republicans basically want anarchy anyhow, so maybe that’s why they are cheering her on. They are cheering anyone who will push policies that they agree with, legally or illegally. It’s affecting the ends they want that matter, and most are not principled enough to see this is both illegal and wrong. This variant on the freedom of religion ruse is just one more.

Fortunately, at least U.S. District Judge David Bunning gets it. A fine would not be enough here. Right-wingers would simply set up a fund that would allow her to flaunt the law indefinitely. So I feel no pity for her whatsoever. If her convictions are as sincere as she claims, the honorable thing to do is to resign. Otherwise, she should follow the rule of law for her public position that she swore to uphold and for which she is paid to uphold. Or she can choose to rot in jail on principle, which is fine with me.

Update 9/4/15 – Clarified post to note that Davis’s son has not been jailed.

 
The Thinker

Letting freedom (and common sense) reign

It was just a year ago that I blogged about the Supreme Court’s Hobby Lobby v. Sebelius decision. While not entirely unexpected due to its earlier disastrous Citizens United decision, this decision, which let a “closely held corporation” opt out of the birth control provisions of the Affordable Care Act, still felt like a kick in the groin to us progressives. June can be a very frightening month in the United States since it’s when the court’s most controversial opinions get released.

For 2015 though progressives have much to cheer about, and it’s the conservatives that are furious. This is principally because of two cases decided in the last two days that had seismic impact.

In case you just climbed out of a cave, these were King v. Burwell and Obergefell v. Hobson. In the former, a majority of the court said the Affordable Care Act could not be gutted because of the ambiguity of one section of the law that talked about state health care exchanges. In the latter, a closely divided court decided that no state could prohibit two people of any sex or gender from marrying, and that every state had to recognize same sex marriages issued in other states. In short, gay marriage was instantly legal everywhere in the United States.

If you are a progressive, this makes for a very good week indeed, but it gets even better. Almost ignored was Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The ruling said that even if a housing developer did not knowingly engage in housing bias, it could still be subject to a civil suit for such bias. Apparently, ignorance of the law by housing developers is no get out of a civil suit free card, even though the plaintiffs were hoping it was.

So while the court’s decisions last June were mostly a fright show for us progressives, this year it is mostly a fright show for conservatives. It caps an excellent week for President Obama, who also resurrected his Trans-Pacific Partnership proposal by getting Congress to agree to special rules to enact it with an up or down vote with no amendments by either chamber. For progressives though this was the sour political note of the week. The TPP, or actually the TPA, sort of rose from the dead after we thought we had put a stake through its heart two weeks ago in the House.

Include into the melee the nine people brutally murdered by Dylann Roof last Wednesday at Charleston, South Carolina’s historically black Emanuel AME church in what but only a few of the craziest conservatives agree was a racist act of domestic terrorism. The tragic and horrifying event though had a special power in a way that its perpetrator did not intend. Just a few months after the 150th anniversary of the end of the Civil War, the South seems to suddenly want to actually end it, just in spirit this time. The Confederate flag, even in the South, is no longer cool. Once South Carolina governor Nikki Haley spoke in favor of the removal of the Confederate flag from its special flag post at the state’s capitol, Republican politicians were practically jumping on top of each other trying to agree that Confederate flags everywhere needed to go to museums and stay there. States across the South are anxiously revisiting their previous pride about the Confederate States of America.

Despite Republicans controlling a majority of the state houses and governorships and the U.S. congress, their agenda is being beaten back. It’s not supposed to be this way and in fact in many ways it’s not happening. It’s largely not happening with their increasingly onerous restrictions on abortion rights, or voting rights, or on many other issues. But on some of the issues that animate them the most, like gay marriage and Obamacare, they got bitch-slapped something bad this week. They are furious but largely impotent. If you see someone foaming at the mouth these last few days, it’s probably a Republican.

Whereas progressives like me are kind of stunned by it all, but particularly on the court’s ruling on gay marriage. It’s not its decision that surprised me, but I am stunned by how quickly the nation and the courts evolved on the issue. I wrote in this post back in 2008 that I expected it would take a few more decades for gay marriage to be legal in all fifty states. In the court’s 5-4 decision today, it’s now legal in every state, just seven years later! To put this in perspective, it was just 11 years ago that Massachusetts became the first state to legalize gay marriage. This is a stunningly fast change. Justice Kennedy, writing for the majority in Obergefell v. Hobson, was almost poetic in his writing:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The 14th amendment to the U.S. constitution was the legal rationalization for the decision. It is also known as the “equal protection” amendment. Its citing was not a surprise, but using it as a justification was poetic as well. Here’s why: the 14th amendment was passed after the Civil War to protect the rights of blacks who were no longer slaves. The amendment can be thought of as the “equal means equal” amendment. The Supreme Court simply stated that its ruling was constitutional because otherwise gay, lesbian and transgendered individuals would be denied privileges available to others, which is both the intent and spirit of the 14th amendment. Progressives can feel giddy because had there been no Civil War it’s unlikely that this amendment would have been introduced at all, so it’s quite possible this ruling would never have been enacted. There probably would have been no constitutional rationalization for this decision otherwise, and conservatives would have won the day. In short, you can tie the court’s ruling on gay marriage as a very belated response to the insurrection of the southern states and the apartheid principles that Dylann Roof perpetrated last week.

In the case of King v. Burwell, the Supremes essentially undercut the premise of the self-proclaimed constitutional conservatives on the court. Constitutional conservatives believe that every law must be judged against the original intent of the constitution and it means exactly what it says and nothing more. No less that Chief Justice Roberts, who wrote the majority opinion, explicitly undercut that rationalization. He wrote:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well.

Roberts and a majority of the court affirmed, as it has hundreds of times throughout its history, that when a portion of a law erroneously works against its clear intent, then the intent of law is what prevails. It was a ruling that faithfully reflected the will of Congress when the ACA was written, and a majority of the court thus held to the fidelity of the law.

For us progressives, this has been a week of largely good news. It is good news that gays, lesbians and the transgendered have the same marriage rights as heterosexuals. Equal now really means equal. We see it as an expansion of freedom. Strangely, conservatives only want to expand freedoms for those who look and act a lot like they do. Anything else is the overreaching hand of big government at work. Similarly, in the case of the interpretation of the Affordable Care Act, conservatives think that every law should be interpreted literally, whereas the Supreme Court reaffirmed that its rulings should be faithful to the law’s clear intent. These rulings were victories for common sense and for the spirit of the law and constitution.

What goes around though will come around. These court decisions seem to ping between favoring liberal and conservative wings, usually based on Justice Kennedy’s interpretations of the law and the constitution. So it wouldn’t surprise me if in a year from now I will be railing against the court again for their ill-informed judgments. For now though it’s pop the champagne time. Obergefell v. Hobson in particular is a landmark opinion of a scope and breadth rarely seen these days, and whose impact will be strongly felt for decades to come.

 
The Thinker

When did conservatism become so radical?

Halloween should be rescheduled for the last week of June. This is the last week of the Supreme Court’s annual session and they tend to leave their juiciest and most controversial decisions to the very end. The Supremes did not disappoint this year with two decisions yesterday that should leave sensible people reeling.

I’ll concentrate on the first, Hobby Lobby v. Sebelius and leave the public unions decision Harris v. Quinn perhaps for a future post. In the Hobby Lobby ruling, we got a decision that grants “closely held corporations” religious rights. Previous Supreme Court decisions had already granted corporations personhood status, a preposterous assertion given that corporations do not breathe, have children, die, get checkups, walk, talk or vote. On the latter, given the court’s breathtaking decision in this case, it’s probably only a matter of time before corporations get the right to vote as well. (Given the way the Supreme Court sees these things, they will probably get a number of votes proportional to their status, maybe based on the number of employees.) Justice Alito went so far in his decision as distinguish between corporations as people and actual human beings, “natural persons” as he calls us. You have to ask yourself: WTF? Was he sober when he wrote this?

All this, you see, is to protect the precious rights of the people that own these companies, as if in their role as “natural persons” they don’t already have the right to vote, or to spend their own money on campaigns, or speak out at rallies or take out ads in the newspaper. This means, of course, if you are an executive of a corporation you effectively get twice the rights, but effectively a lot more as you can wield the assets of your company to the extent you have money or can borrow money to speak out as much as you want. The Koch Brothers epitomize the ability of the very moneyed to drown out much of the rest of us. And now because your corporate personhood is so precious, you can also take away the rights of others. Unsurprisingly, certain companies like Hobby Lobby feel the need to screw it to women, which thanks to this decision means that they can prohibit contraceptive coverage from being covered in their health insurance plan. Why? Because it’s against their religion. Like corporations can go to church!

You would think this decision could not possibly make the pigs any “more equal” than the other farm animals (that’s an Animal Farm reference, in case you missed the allusion), but you are forgetting one of last year’s stunner decisions. Almost a year ago, on June 25, 2013 the Supreme Court struck down the heart of the Voting Rights Act of 1965. This law required certain states like Mississippi with a long history of racial discrimination in the voting booth to get preclearance for their voting methods. Mississippi was one of many mostly Southern states to set up more onerous criteria for voting: you had to show an approved photo ID, something that is difficult, expensive and inconvenient if you are poor. The Justice Department didn’t like it, of course, so it nixed the idea, but the state appealed to the Supreme Court. Of course, keeping blacks and minorities from voting was the whole intent of the law in Mississippi. By this decision, the Supreme Court effectively gutted the Voting Rights Act, which was written specifically to get rid of decades of Jim Crow laws that made it hard or impossible for minorities to vote.

So the Supreme Court, which claims to be so concerned about maximizing freedom of speech, gives virtually unlimited speech to corporations which aren’t even human beings while allowing states to make it harder for certain actual human beings, minorities and the poor naturally, to exercise what limited speech they have due to their financial state. In other words, it’s more freedom for those who can afford it, including entities (corporations) that are legal fictions, something Justice Alito in his decision candidly acknowledged. And due in part to last year’s decision, it’s less freedom for those that can’t. This is not surprising from a court that was very plainly equated money with speech. Last I checked, a dollar bill did not have lungs, a tongue and lips.

This is conservatism? This is not radically changing what has worked in the past? I don’t know what word it is, but it is not conservatism. It’s crazy and radical stuff. Rather it was the Supreme Court that inferred that corporations must be treated as people. These latest shocking decisions take this to a further absurd and quite frightening level.

Given that these radicals will be on the court for some time a harder and more permanent solution is needed. It’s already underway but as a practical matter to actually make it happen will require Democrats to have large majorities in both the House and Senate. It is simply this: we need a constitutional amendment that unambiguously states that corporations are not people and only have such temporal rights as Congress deigns to give them. If I were in charge, corporations would be forbidden from giving a dime to any political candidate, any PAC or any group that works to influence public policy on any level whatsoever.

What kind of glue are these conservative justices sniffing? Have they read the preamble of our constitution lately? It simply starts, “We the people”. There is no “We the people and corporations”. That is original intent. The so-called constitutional conservatives on the Supreme Court who voted for these unwise and radical decisions have simply proven the opposite. Instead, they are part of a cancer that is killing our democracy.

 
The Thinker

The oligarchy’s recipe for staying in charge

If we reputedly we live in a democracy, then why are those in charge so out of touch with the needs of ordinary people? Ordinary people want jobs, but that appears to be the last thing that politicians in Washington are concerned about. Of course they claim just the opposite, but see what animates them. It sure isn’t jobs. Instead it’s tax breaks for the wealthy and ending abortion.

It might be because Congress has little in common with its constituents. For example, just one percent of Americans are millionaires, but 46 percent of Congress are millionaires. The problem got worse with the 2010 elections, which brought in a freshman class of senators with an average net worth of $4M each. It’s not impossible to get a seat in Congress and be of modest means, but it’s clear that it is very hard.

Running for Congress is not something you can squeeze into your evenings and weekends while you earn income at a full time job. Running for Congress is far more than a full time job. It consumes pretty much all the time you have, including a fair amount of your sleep. To even have a chance of winning against an incumbent, you need lots of money, so you spend most of your time not campaigning, but on the phone dialing for dollars or at fundraisers. So it really helps to be independently wealthy. If fundraising slacks off, you can always dip into your personal savings. But even many of the wealthy cannot self fund their own campaigns. Campaigns are so expensive they must seek out others with money.

For the most part, the rest of us are just trying to survive. If we have ambitions for running for political office, it might be for school board or dogcatcher, because that’s as high as we are likely to get. But even winning those kinds of elections still takes the ability to raise tens or hundreds of thousands of dollars. Which is why you quickly find that you must affiliate yourself with a political party. Hopefully there is some congruence between your beliefs and the political party you choose, because if you run then you will need to animate members of your party to campaign for you. Which means you will tune your message, at least in part, to what they want to hear. To win, it helps enormously if you become more partisan, not less.

It also helps if you fire up your base while other voters stay mired in apathy. You want those who would vote against you to feel disengaged and not vote at all. When voters overall are engaged, this results in close elections, reducing the likelihood that you will win. However, if you can fire up your base but those who would vote against you are more inclined toward apathy than to vote, the chances of winning rise dramatically. On the other hand, particularly during presidential election years when turnout tends to be higher, if you can align with the winning presidential candidate’s ideas and philosophies, you can profit from the coattail effect. This is great if it works, but is dangerous.

Once in office, while you could work on issues your constituents care about, for the most part they won’t be calling or writing, since they are busy. Those who will be calling and writing are more likely those with particular axes to grind. Don’t expect many visits from those lobbying to end muscular dystrophy. Instead, expect those fiercely animated about something to knock on your door instead. This will be a lot of gun nuts and antiabortion zealots. You will find your path to reelection so much easier if you accommodate them instead of having them as obstacles, so most in Congress do. Mostly those who will be calling will represent corporate interests. In fact, most of them you will know already, because they helped fund your campaign. They did so on the understanding that you were aligned with their business interests, so you need to keep voting for their bills.

Since Congress has become an oligarchy run principally to meet the needs of American corporations, American corporations in particular know a good thing when they see one. Power is exercised through proxies. They will sponsor you to the extent that you vote with their interests, and will quickly pull money and support if you dare deviate from it. With money of course comes the opportunity to leverage more power. This is done in various ways. It is done by setting up think tanks stuffed with eloquent people that will act as an echo chamber. It will be done through setting up shell political action committees that are purportedly average citizens, but in reality are corporate CEOs. Since those with money tend to control the airwaves and the presses, it also means the media must reflect a corporate message. Over time it means using your advantage to win more political power, not just in Congress, but also in the executive branch and, most importantly, in the Supreme Court, where power can be extended over decades unchecked. It is not coincidence that our conservative Supreme Court has declared that corporations are people, in spite of the fact that this has nothing to do with original intent.

What does have something to do with original intent is limiting voting power to men with property. This was how republican government was understood in 1776, but it reflected a society where slaves and women were chattel, and those without property were often indentured servants. Who could vote was a matter for states to decide, and typically these were only male property owners. Some see virtues in this today, and it is expressed in a variety of policies that give one class more power at the expense of another. At one time it was accomplished through a poll tax. Now it is done by raising barriers to voting: making it harder to use absentee ballots, requiring students to come home to vote, voter ID laws and tightening the window between when you must be registered to vote in order to vote. Vote suppression is only illegal if you get caught, and if you do get caught it won’t invalidate the results of an election, so it’s worth a try. Election officials can always claim later they did not know they needed more voting booths in poor wards. Mistakes happen.

There are more insidious ways to maintain power, and unfortunately they are being played out now. The wealthy understand that money is power, which is partly why it doesn’t bother the Supreme Court at all to call corporations people. If money is power, then those with more money have more power. Hence, you want those with less money to have even less of it, and you to have more of it, so lower those capital gains taxes and keep taxes for the rich artificially low in general. The key to doing this is to make it virtually impossible for anyone poor to get a leg up. You want people to be poor, because this leaves them disenfranchised. You want public schools to fail, so you underfund them. You want more poor people, since it further reduces the cost of labor, so you find it convenient to be antiabortion. You also want the poor to die early, since they do not burden society by being unproductively unhealthy, so it doesn’t bother you if they cannot afford health insurance. You want the poor to have insurmountable obstacles to wealth. In short, the poor become tools that let you live a richer life. They are to be used with no thought or concern that they are actual human being with feelings.

What you don’t want are people who manage to escape the barriers put in front of them, most recently manifested by presidents like Bill Clinton and Barack Obama. Lessons learned: they managed to escape their social class through Great Society programs like Food Stamps and scholarships for poor and minority students. Practical men of action like them, who root for the common man, are extremely dangerous. This explains not just the dislike, but the hatred and loathing against both Clinton and Obama. They escaped the many traps put in place to keep them down. So get rid of welfare, get rid of Food Stamps, get rid of scholarships, and get rid of anything that can address their inequity. Say it’s all about self-reliance and that anyone with enough gumption can surmount insurmountable hurdles. It’s part of the American myth and it’s part of how the oligarchy stays in charge.

In a future essay I hope to suggest what we can do about this.

 
The Thinker

How Republicans politically manipulate you

Republicans may be wrong on most things, but that certainly does not mean they are stupid. How many poor Republicans do you know? I cannot think of any offhand. Unless you inherit a boatload of money, you don’t get to be rich by being stupid. You get rich by figuring out ways to manipulate people, organizations and markets so that you come out ahead, usually at someone else’s expense. Perhaps the first rule in becoming rich should be to join the Republican Party.

Lately, Republicans have fine-tuned their machine to deliriously new and exciting heights. The Great Recession scared most of us shirtless, but Republicans saw it as an opportunity. They got us into it in the first place. However, when you don’t care about the consequences of your actions as long as it enriches you and your tribe, and when you do not feel remorse, you also won’t suffer from shame and guilt that most normal people would feel.

Yes, their stock portfolios took a tumble just as mine did, but they had eight profitable years under George W. Bush and largely Republican congresses to fatten their cash coffers. They persuaded Congress, which they essentially purchased, to lower capital gains taxes below their income tax rate, far below it, in fact. This means that investing money is now officially valued more than labor, which means the rest of us will pay disproportionately more in taxes. They also pushed the levers of power to lower their income tax rates as well. The cost has been massive deficits and the movement of wealth from middle and lower classes into the elite’s pockets instead. That this happens really doesn’t bother them at all; it makes them happy. If the government has to borrow money to give them tax cuts, like we’re going to do again with the latest compromise, that’s perfectly fine too. All that really matters is the accumulation of more and more wealth through whatever means works. When you cannot grow an economy because of lots of systemic factors, moving wealth from the bottom half to you is more than acceptable.

So unsurprisingly, Republicans dominate the moneyed professions, such as banking, investments, realty and the like. The one exception might be the law profession, simply because Republicans as a class don’t like it when the legal system can be used sue the rich into making them give up some of their wealth. It’s not sporting for a Republican to play Robin Hood, and that’s what a lot of these trial lawyers do, while often collecting a third of the settlement as their reward. So we get disinformation campaigns on so-called lawsuit abuse, for filing civil suits in court that are inherently lawful.

One of the first rules that the rich learn is that if you want to make money, you have to spend money. If you are of modest means like the rest of us, you don’t have a whole lot of discretionary spending. In fact, Republicans are hoping you are up to your eyeballs in debt, because this just makes you more disenfranchised. Whereas if you are rich, spending ten percent of your income to make sure you stay rich or get richer makes a lot of sense.

With the Supreme Court’s blessing in the Citizens United decision, they now no longer have much in the way of constraints. Under the guise of a corporation or a political action committee, they can spend as much as they want on elections. Unsurprisingly, they use their money to dominate the airwaves to make sure their message is heard. They also spend gobs of money on focus groups to figure out what message or phrases are most likely to influence you. Once they find it, they market it relentlessly.

Therefore, you get campaigns that culminate in an odd sort of distinction: PolitiFact’s infamous Lie of the Year 2010, a carefully crafted lie generated by moneyed Republicans designed specifically to appeal to your worst fears. That it was in fact a lie matters not. There is no penalty for lying in political advertising. The only thing that matters is whether you can sustain the lie long enough for it to have a political effect. Oh, the lie? It came from political consultant Frank Luntz who urged GOP leaders to say that health care reform was “government takeover”. How many of you knew it was a lie? How many of you were convinced, like Sarah Palin may actually believe (but probably no other thinking Republicans), that health care reform meant government death panels were imminent? How many of you were uncertain, but it had just enough plausibility in your mind to alter your vote?

Republicans played voters like a well-tuned fiddle this election season. Voters were already dreadfully anxious because while we were technically out of a recession the unemployment rate hovered near ten percent. So thinking like a Republican, you see opportunity and put out messages designed to feed these anxieties. Accuracy is obviously not important, you just have to influence perceptions and feelings. And when you have a lot of money and can afford to do first class market research and saturate the airwaves, you can translate anxiety into votes and gain sixty-three seats in the House of Representatives alone.

Democrats unwittingly aided and abetted Republicans, proving ineffectual at best at countering these messages. This was in part due to the large volume of salvos being hurdled at them. If you are forced into a defensive game, this eventually means that you will lose, because to win you have to score points. With money, it is possible to put the opposition on the defense most of the time. Rest assured that Republican political consultants have prepared poll tested responses in advance for any response they will get from Democrats to one of their many lies and exaggerations. Mainly they know that we voters are simple creatures. We cannot handle too much complexity, so they keep repeating the same talking points relentlessly until they sort of morph into a new conventional wisdom.

Any questions? How to change this dynamic will be the subject of a future post.

 
The Thinker

News alert: Supreme Court decisions are inherently political

Did you watch the Senate Judiciary Committee hearings on the nomination of Elena Kagan to be the newest Supreme Court justice? If you did, you may well have experienced déjà vu.

About the only thing that changes in these hearing is the nominee. The questions are all eerily familiar, as are most of the faces on the committee, which do not change a lot. Senators ask lots of probing questions that the nominee will tend to dodge. Most of them will be about controversial issues like gun control and abortion. The president’s party will generally throw softballs and be effusive with their praise for the nominee. The nominee will dodge most questions saying of course they cannot say how they will rule on hypothetical future cases. They will say that they will weigh the issues that come before them fair and impartially. Then, the Senators will generally vote the way their party leaders want them to vote because they are not jurists, they are politicians. This time around, since every Republican senator is scared that a vote for Kagan will inflame the Tea Party, only one or two Republicans will be brave enough to break ranks. The only real question is whether there is something about the nominee controversial enough for the opposition to attempt a filibuster.

The president and his staff are painfully aware of all this, which is why finding the right nominee is important. Diane Wood, for example, was probably crossed off because she was just a tad too liberal to escape a Republican filibuster. Kagan though was unusual because she had never been a judge. Her lack of a record was something of an asset. Senators were left to fume about minor actions she took while dean of the Harvard Law School. With Democrats in the majority and little in Kagan’s record to get bent out of shape over, Kagan seems likely to be confirmed by the Senate in about a month. But that’s okay. Obama was replacing a liberal justice with another liberal justice. Overall, the balance of power on the court was unlikely to change, with conservatives on the court tending to win most decisions. Expect a real brouhaha if a conservative justice retires and we have a liberal president, or visa versa.

What really annoys me is the elaborate pretense from both senators and the nominee that they will be impartial. What else is the nominee going to say, really? If a nominee were honest, they would admit that virtually all of the Supreme Court’s decisions are political. Senators claim they want impartiality when it is clear they really want a judge that will rule in a partisan matter aligned with their political ideology. When Chief Justice Roberts underwent his confirmation hearings, he went so far as to say that he saw the role of the justice to look at the law and the particulars of the case and then rule whether the case amounted to a ball or a strike. He seemed to be implying that any case could be rendered as either black or white.

As if it is ever that simple at the level of cases the Supreme Court deals with. If a case were easy to decide, it would not have gone through district and appellate courts first, nor would the Supreme Court have bothered to even hear the case. Any case the court agrees to take is going to be inherently squishy and political in nature. While everyone seems to understand this truth, no one will acknowledge it.

The reason you know I speak the truth is that everyone is deeply concerned about the nominee’s record of dealing with controversial or squishy cases. Why? Because these cases help disclose their tendency to apply their political ideology to actual cases. In Kagan’s case, along with many other nominees, their political ideology is hardly a secret. No president is going to nominate someone they think will be at odds with their ideology. Sometimes they don’t get the nominee they expected. Both recently retired justices Stevens and Souter were nominated by Republican presidents, but turned more liberal as they aged. Subsequent nominees have been much more ideological, as presidents worked hard to make sure their ideology rippled through the court long after their terms expired.

The result is a court that now renders a lot of near split decisions, generally on the most controversial political cases. Particularly with controversial cases, it’s not hard to figure out how justices will rule. While the rationale will differ, they will generally line up along their political ideology. Justice Kennedy is usually the only swing vote, and lately he has been trending more conservative. He may be the only impartial justice on the court.

Of course, justices will be influenced at least to some extent based on their feelings and the way they were raised. When there is ambiguity and you have to make a decision, where else will you turn? At the Supreme Court’s level, where cases are inherently squishy, of course those factors are going to weigh more heavily than they will at a state or county court. In the lower courts, the judge is often required to interpret the law a certain way. At the level of the Supreme Court, as much as some on the court would say otherwise, they make the law by deciding the case.

The Second Amendment, for example, was genuinely ambiguous. Did it mean that everyone has a right to own a gun, or did it mean that people had the right to own a gun only because they might need to help support a militia someday? The Supreme Court in a number of recent rulings seems to be saying that the part of the amendment dealing with militias is interesting background history but irrelevant. Everyone has the right to own a gun. The court parsed the arguments and history of the Second Amendment and there was evidence of original intent in both directions. The court, based on its ideological leanings, made the political decision to interpret the amendment (yes) liberally. It could have said it was so ambiguous that Congress needed to pass a clarifying law. It did not.

Often the Supreme Court will, by the narrowest of margins, overturn a ruling by an appeals court that was also decided on the narrowest of margins. That so many different “impartial” judges can see these murky cases in so many different ways and come to so many different conclusions just goes to prove that Robert’s “balls and strikes” argument is hollow.

Everyone understands the reality, which is why the president is so careful not just with Supreme Court picks but also with picks for district and appellate courts. The more judges he can get confirmed that align with his ideology, the better the odds are that over time these jurists will issue rulings that also align with his ideology. This is also why senators, through the use of dubious tactics like secret holds, try to bottle up nominees for lower court judges that are the least bit controversial.

At the federal level, all but the lowest courts decide cases that are inherently political. That’s the way it has been since the birth of our republic and the way it will be while our country exists.

It would be nice if we would stop pretending it is otherwise.

 

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