Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme

Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House.  I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats.  Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate.  Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Here is the column:

“Nothing is off the table next year.” Those seven words of Senate Minority Leader Chuck Schumer capture the “total war” declarations of the Democrats when asked about any nomination to replace Supreme Court Justice Ruth Bader Ginsburg before the election.

There is a type of liberation that comes from what military theorist Carl von Clausewitz called “absoluter Krieg”: “War is nothing more than the continuation of politics by other means. … For political aims are the end and war is the means.” The means raised with Schumer is a demand for the Democrats to pack the nation’s highest court with added members once they take control of the Senate.

House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”

Yes, it is as simple as it is senseless. It is a curious way to honor Justice Ginsburg by destroying the institution she loved. Packing the court is all about power, not principle.

Remember Franklin Roosevelt

As members and commentators have lined up to pack the court once Democrats take control of the White House and the Senate, I have been called about a plan that I first proposed over two decades ago to expand the court. This, however, is not my plan. It would expand the court for the wrong reason and in the wrong way. In that sense, it is more similar to the court-packing plan of President Franklin Roosevelt.

In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small. Moreover, unlike the considerable thought put into all of our other major institutions, the size of the Supreme Court was arrived at by virtual accident. The Constitution does not set the size of the court.

The first Supreme Court had just six justices, and when it convened in 1790 at the Royal Exchange Building in New York, only four justices bothered to show up.

Over history, the size of the court has fluctuated. Justices once “rode circuit” and sat as judges in lower courts, so when Congress added a circuit, it would add a justice. When a 10th Circuit was added in 1863, a 10th justice was added. In 1869, however, Congress set the court at nine members.

That’s it. No deliberative debate. No historical or political analysis. More thought went into the size of the Consumer Financial Protection Bureau than the size of the U.S. Supreme Court.

Notably, most of the other countries with substantially larger courts have them to avoid the persistent problem of our nation’s highest court in becoming practically a court of one with a swing justice. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.

However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.

This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.

Democrats just want muscle

Democrats want to simply engineer a majority in a raw muscle play after taking over the Senate and the White House. It is as raw and transparent as the FDR court-packing scheme. Faced with a conservative majority ruling against his New Deal legislation, Roosevelt called for up to six additional justices, one for every justice older than 70. That was basically the profile of the “four horsemen” blocking his measures.

Like the latest calls, the FDR plan was based on politics rather than principle. When the politics changed, the plan died. FDR dropped his plan as soon as he got what he wanted with a favorable majority. That is why the switch of Justice Owen Roberts in favor of a New Deal case became known as a “switch in time that saved nine.”

The expansion of the court should not be simply because Democrats do not like the fact that President Donald Trump got three nominations. This was always the risk for a number of aging justices. In 2017, I wrote that Ginsburg (who was the oldest member of the court and long battled cancer) was taking a huge gamble with her legacy by not allowing President Barack Obama to appoint her successor.

Before Ginsburg died, nine nominations had occurred in election years since 1900, and Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” Moreover, Ginsburg also opposed expanding the Court, but she is not being cited by liberals as the reason to doing precisely what she opposed as inimical to the functioning of the Court.

That does not mean that the Democrats are wrong in calling out the hypocrisy of Republicans who opposed any vote in 2016 (or conversely Republicans quoting Democrats who insisted that election year nominations are entirely appropriate in 2016). Senators can vote against the nominee on any ground, including the timing. However, nomination is still a constitutional prerogative being exercised for the 10th time in an election since 1900. It is no excuse to call for the packing of a court and destroying decades of tradition. It is the political equivalent of the Vietnam War goal of destroying a village to save it. This court will not be saved by packing it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

253 thoughts on “Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme”

  1. Allan’s remark is correct – IF and only IF the US followed the constitution, and SCOTUS stick to the constitution as written.

    Though I would not trust modern software developers to do so, the job of a supreme court justice could easily be done using modern machine intelligence – treat the constitution as the program and reject laws that do not fit within it.
    It is that simple.

    But we do not live in that hypothetical world.

    BECAUSE we do not – SCOTUS has long and rightly been a focus of republican voters.

    Adam Smit got the role of government right 250 years ago
    “Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things. All governments which thwart this natural course, which force things into another channel, or which endeavour to arrest the progress of society at a particular point, are unnatural, and to support themselves are obliged to be oppressive and tyrannical.”

    There is no need for constant legislation. Government can not morally engage in charity. The decision to help another is only moral if you do so yourself. Most of us grasp that if I put a gun to your head and demand that you give to cancer research, that my actions are criminal, and yours though for a good cause have no merit. You do good, you act morally, only when you act yourself.

  2. “This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.”

    That’s an odd remark given what the rest of that section of the blog entry says. What the Dems are contemplating is constitutional.

    The rule book was never part of the Constitution, but was a group of nonpartisan ideals. It has increasingly been tossed aside by both parties in favor of raw power politics, with no prospect of that changing by relying on the mere good faith of the parties. Hyperpartisanship has been on the rise for decades and will continue to increase, by all appearances. (I blame hyperpartisan news outlets like Fox and MSNBC primarily, by the way.)

    In that context, taking power where it can be had may be the only prudent course. What, after all, would stop today’s GOP from packing the Court if they had the votes? The same scruples they showed in regard to the brazen Garland/Barrett reversal?

    What’s really needed is a constitutional amendment, a new rule book that doesn’t rely on mere ideals, expanding the Court slowly to a more practical size. It might be possible to sell both sides on such a thing in conjunction with two justices being added in the first Biden term. That would make up for the Garland/Gorsuch swing, which is really all most Dems would require I think. The prospect of uncontrolled additions might be a less attractive alternative to the GOP than the amendment.

    Not that what happened to Garland was unconstitutional or wrong in itself, but the reversal signaled clearly the increasing departure from the norms that once applied. Without such norms, and with no constitutional constraints, it’s all about raw power on all sides.

    1. “Hyperpartisanship has been on the rise for decades and will continue to increase, by all appearances. (I blame hyperpartisan news outlets like Fox and MSNBC primarily, by the way.)”

      If one is actually interested in such history then one recognizes that Fox is a result of a TV media that was hyper-partisan. That left the door open for a new entry that became Fox.

      Today, almost the entire press and social media giants FB and Twitter are controlling the news preventing the release of unfavorable information on Hunter’s laptop and permitting Joe Biden to remain in the basement. Today’s present media isn’t much different from the media seen in Russia and China. Our children and grandchildren will have to face a more repressive government for the mistakes being made while we speak.

      1. I think you’re half right. Fox is indeed a reaction to liberal bias in the media, but the mainstream media (in which I no longer count CNN) wasn’t and still isn’t hyperpartisan. They try in good faith to be fair and objective, even if they often fail. Fox and MSNBC and the like try to do the opposite, they’re intentionally biased. That makes a great difference in the results.

        1. There is no question that the MSM is strongly partisan left. Fox is center right, but they have people from the left. Chris Wallace is one of those from the left. One hears most of the news at Fox whether it benefit the right or the left. The MSM is not the same. The unverified and totally phony Steele Dossier was given tremendous play on the MSM and the Biden computer story little to none.

          1. That’s the line Fox and other intentionally-biased media feed their consumers continually, as a matter of self-justification, but it doesn’t address the problem I pointed out. Fox and MSNBC are intentionally biased, they try to be biased, to support a certain controversial ideology. They mostly air overt opinion-based propaganda, highly productive of hyperpartisanship in itself and its audience.

            That’s the opposite of what the mainstream media tries to do. The difference is stark. Actually trying to rise above bias works much, much better for arriving at truth and avoiding partisanship than trying to cater to and promote bias.

            That the mainstream media has been very cautious with a suspicious story they can’t verify essential pieces of isn’t a sign of bias. Even Fox, which has a real news division hidden among all the opinion-based dreck, reportedly turned the story down before the Post got it, and the Post reporter who wrote most of the original story reportedly refused to attach his name to it. That should tell you something about the journalistic side of it.

            1. Fox news is center right but the actual news division shows both sides of the story. Don’t confuse the talk shows with news.

              The network shows (ABC, NBC and CBS) are left. They do not report certain news until forced to, IMO.

              Since you spent effort on this reply lets compare the news shows between the left and the right (Fox and the networks, not the opinion shows, for convenience start late afternoon say 4PM till midnight) on how each side reported the Steele Dossier and the Biden computer stories. You told us earlier Fox initially refused to broadcast the story on the Biden computer. How did the network shows handle the Steele Dossier which was phony? Let’s compare the news on both those stories since they are comparable.

              1. My point isn’t about what the bias of various media outlets might be. The crucial difference between ABC/NBC/etc and Fox/MSNBC/etc is between trying to be objective and trying to be biased. Their goals are opposite, and the results are vastly different. One is necessary to a free and thriving democracy, the other is more often a great hinderance to it.

                You can find instances of bias in the mainstream media, of course (Steele dossier or whatever), but it isn’t comparable to the hate-based, highly misleading material such as we get continually from Olbermann or Hannity, which is mostly what intentionally biased media fill listeners’ heads with.

                1. Hannity is an opinion show, not a news show. He never wishes anyone to be killed and supports non-violence and civil ways of behavior. His facts are mostly accurate because he is honest and in part because the left watches him so closely and will pounce on him when he is wrong. That is why he corrects his mistakes as soon as they are found. He is a strong partisan for a mixture of libertarian and conservative ideas. He calls himself a conservative because he has a lot of strong negative feelings about the Republican Party and a number of Republicans.

                  Whereas Fox will openly discuss the Steele Dossier as well as Hunter’s computer the networks positively spun the Steele Dossier until it was on its deathbed and barely, if they did, mention Hunter’s computer and the letter we discussed. In other words one can get more of both sides of the news from Fox than from ABC, NBD, and ABC. I am sure the stations are finally starting to open up.

                  I am not an expert on this subject but due to prior discussions for fun I taped shows and compared them in discussion with some others. I pointed out factual lies and information not disclosed by the left but my leftist colleagues could not do the same for Fox (they do sometimes occur).

                  1. Yes, as I pointed out before, Fox/MSNBC/etc are dominated by opinion shows. Fox News is a lot more Fox Opinion than News.

                    My point remains that such programming is highly unreliable, misleading and harmful to those who trust it and those who are affected by those who trust it, much more than the mainstream media that actually tries to be objective. Fox/MSNBC/etc exemplifies and promotes hyperpartisanship, which is harmful to the nation.

                    1. In other words you were wrong. I even said to compare real news shows.

                      Opinion shows are not the problem rather it is news shows that lie or omit the truth. You seem to have the same problem.

                    2. “the mainstream media that actually tries to be objective”

                      WTF are you smoking?!

                      Seriously. How old are you?

                    3. “My point remains that such programming is highly unreliable, misleading and harmful to those who trust it”
                      Agreed completely.

                      Whatever problems Fox might have in the past decade it has made far less egregious errors than the rest of the MSM.

                      I do not think Fox comes close to the standards of what I expect of the media. But they remain head and shoulders above the rest of the MSM.

                      Finally YOU are responsible for YOUR choices regarding who to trust. YOU are responsible for the affect that YOUR trust has.

                      “much more than the mainstream media that actually tries to be objective.”
                      Not a chance at all. Again whatever objective standards you use – Fox may fail them – but the rest of the MSM is far worse.

                      You chose to defame Hannity – I have admitted I do not like Hannity – you have an audience that would be easy to persuade.
                      So please – what is your example of Hannity misleading people ? Any example ?
                      I beleive the phrase collusion delusion is his – not the slightest misleading to me. As i noted I thought some Alex Jones claims were off the wall – but time has made Alex Jones look sane on this – and Alex is far to the right of Hannity.

                      “promotes hyperpartisanship, which is harmful to the nation.”

                      I have no idea what “hyperpartisanship” is.

                      I know what facts are.
                      I know what being right and being wrong is.

                      I measure the left and the right against the same criteria – not some subjective claims of ideological extremism – but objective facts.

                      Can you name a single policy of any prominent democratic primary candidate that is not objectively nonsense ?
                      Just one ?

                      Trump is wrong on several policies – but he is right on far more. Further on those he is wrong on the damage is much smaller.
                      Trump exagerates alot – democrats either outright lie or live in fantasy land.

                      Trump is having fun at rallies right now playing numerous clips demonstrating that Biden LIED on several topics in the last debate.
                      Yet Biden said that Trump lied when he said that Biden said he would end Fracking – the internet is unforgiving to liars – there are many many many clips. Biden not only lied he violated “Thou shalt not bear false witness against thy neighbour” – he lied about another person.
                      He made a false moral accusation to save his own skin. Why is the only one calling him on it Trump ?

                      Why aren’t you ? You claim Ted Kennedy was a moral person – Is Joe Biden a moral person ?
                      Do moral people tell crazy lies ? Do moral people falsely accuse others of lying ?
                      Do moral people sell they offices for mammon ?
                      Do moral people blame others for their own moral failures ?

                      You have a very odd concept of morality.

                2. There is not a major news outlet today that “tries to be objective”.

                  The major left wing media outlets are for the most part open about that.
                  Barri Weis was drummed out of the New York Times specifically because she was trying to be objective.

                  No one at NYT wants objective.

                  Fox has problems and I do not recomend it – but it is still head and shoulders above the rest of the media in the criteria you think are critical.

                  If you want objectivity today you have to look outside the MSM.

                3. I do not follow Hannity, and I do not personally like him.
                  But I am hard pressed to think of an instance in which he has mislead people.

                  Even Alex Jones who is a complete nutjob has been actually right about more things than any current MSM host.
                  The degree to which he has been right is really scarry – there actually was a conspiracy within government reaching to the highest levels to punish political opponents. The Obama administration is the most corrupt in US history. They were both politically corrupt and lining their own pockets.

                  You pass off the Steele Dossier and the Collusion delusion – but nearly the entirety of the press – including many at Fox bought into an OBVIOUS fraud for almost 4 years.

                  It does not take many brain cells to grasp that Putin favored Clinton. To claim otherwise requires beleiving that the most powerful and crafty politician in Russia would act against his own interests and those of his people.

                  Just as at this moment – it takes very little intelligence to understand that China. Russia, and Iran want Trump to lose and Biden to win.

                  This is not rocket science.

                  With respect to the rest of the “collusion delusion” – though all the following claims are false, even if true they are completely irrelevant.

                  The DNC emails were damning – because they are True. Just as the Biden laptop emails are damning because they are true.

                  Are democrats allowed to cheat in their own primaries – so long as they do not get caught ?
                  If Russia actually hacked the DNC and provided those emails to Wikileaks – wasn’t that a public service to american voters ?
                  Would you have given a $h!t how the Steele Dossier was procured – if anything in it had been true ?

                  If Russia through FaceBook adds actually persuaded millions of voters to vote for Trump – or Clinton or Sanders or Biden – that is how free speech works. I do not much care about the biases in the press – I care that the Press is dishonest about their own biases. And the remedy is not laws, it is to pay less attention to NYT or the rest of the MSM.

                  Regardless, I have little respect for those who are easily swayed by obvious frauds.
                  Who should trust you on anything ?

                  That covers you personally, as well as most of the MSM.

                  With respect to Hanity – I am not aware of his selling any of the massive frauds that the rest of the MSM has done – but please if I am wrong – enlighten me. What has Hannity mislead people about ? The Trump Russia nonsense – was a Collusion Delusion. The Biden’s are politically corrupt. VP Biden was participating in a scheme to sell the power of the Vice President for personal profit. That is NOT Russian disinformation. And any in the media who are not agressively covering it are the ones misleading the people.

            2. You make this massive Bias claim – it is atleast partly true – and not limited to Fox or MSNBC.

              Regardless, it is still irrelevant.

              Each media companies responsibility is to its shareholders.
              For most all businesses rewards for the owners require meeting the wishes of clients – in the case of the MSM readers and viewers.

              If Fox or NYT or MSNBC wishes to cater to the idiocy of their subscribers – that is their peragative.

              Much of the Media is hiding Biden’s corruption – Leslie Stahl of 60 minutes who told Trump to expect tough questions – refuses to ask Biden about the family corruption. Stahl was correct to ask tough questions of Trump. But if she can not do so to Biden then she diserves the profession and the country.

              If the media succeeds in electing Biden – we will all get the actually corrupt government that those of you on the left voted for.

        2. The MSM is not hyperpartisan – Really ? You can say that with a straight face ?

          I am reading an artical by a host on NPR that she will not invite conservatives on because they will disagree with her.

          She prides herself in that explanation, she thinks that is a good thing.

          Chris Wallace is a Fox host. I thought his one on one with Trump was excellent. It was at points testy and there was some bias on Wallaces account, but mostly it was just hard hitting journalism.

          Biden has not faced a tough interview like that in a decade.

          But Wallace’s first debate moderation was ludicrously Biased. He was actively lobbing Biden softballs and protecting him as he bobbled them. He was not only testy with Trump but his questions were bad. Wallace already asked the question about denouncing white supremecists in the 2016 debates – and unless he is a complete idiot he knows Trump has done so multiple times every week since he first ran.

          And Wallace is from Fox.

          Despite Trump’s praise the moderator for the last debate was even worse. The questions were all one sided.
          When Trump attacked Biden – Biden was given the opportunity to respond. When Biden attacked Trump he was not given the same opportunity.

    2. SP.

      You are correct the only absolutely binding rules are in the constitution.

      HOWEVER, the house and senate and judiciary and executive had numerous rules and understandings that were strongly followed for most of US history. These lead to more stable, better more moderate government.

      Over time – particularly the past 40 years democrats have pushed aside each of these rules for political advantage.

      That is a major factor in the increasing modern political acrimony.

      The other probably larger factor is the increasing shift of democrats to fully adopt Alinsky’s rules for radicals as there means of politics.

      In both instances democrats have forgotten that “turn about is fair play”.

      The war over the supreme court started with Bork and Thomas – many many many republicans have not forgotten or forgiven democrats from politicizing the nominations process.

      The refusal to elevate Garland was brazenly political. But it was ALSO consistent with past norms.
      It was also a huge gamble on McConnell’s part – had Hillary won as all expected someone far more to the left would have been appointed.

      Conversely the elevation of Barrett is less political – but fully consistent with past norms.

      Packing the court is constitutional. It is also extremely unwise.

      Most democrats know it. Biden wisely will not talk about it before the election.
      If he refuses – he will lose votes on the left, if he committs he will lose votes in the middle.

      Regardless, he owes people a public committment.

      Further should democrats expand the court – that too will result in a backlash. Do not think that republicans have no further options.

      And you should be very very very scared should they actually reach the point of no options.

      The left continuously infringes on our rights. When all legitimate means of addressing that are exhausted THEN revolution is legitimate.

      ” whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it,”

      The Wolverines only mistake may only be premature.

      1. Both parties have abandoned past norms piece by piece. It’s not just the Dems. Being brazenly political, as you call the failure to elevate Garland, was itself a further step away from the previous norms, which is why the GOP tried to make it look like a principled decision instead, and ended up having to turn 180 degree on the principles they claimed.

        1. “Both parties have abandoned past norms piece by piece. ”
          Correct, but “it all started with Bork and Thomas” – and that is with democrats.

          “It’s not just the Dems.”
          Correct, but they have lead the charge.

          “Being brazenly political, as you call the failure to elevate Garland, was itself a further step away from the previous norms,”
          It was “brazenly political. It was NOT a violation of previous norms – nor was the appointment of ACB.

          “which is why the GOP tried to make it look like a principled decision instead”
          It was not a principled decision – but it was a NORMAL decision.

          “and ended up having to turn 180 degree on the principles they claimed.”

          False – I do not think the senate has ever confirmed the nominee of a president of the opposite party in the last year of his administration.
          I do not think the senate has ever rejected the nominee of the president of the same party in the last year of his administration.

          This is NORMAL.

          I understand that you do not like it. But everything you do not like is not abnormal or criminal.

          But I will completely agree with you it is “brazenly political”. As Obama said “elections have consequences”.

          Equally important – both of these GOP choices gained republicans votes. Democrats do not signficantly vote over SCOTUS, republicans do.

          You need to change the culture of your party.

    3. What would stop the GOP ?

      Many times during my lifetime it was within the power of the GOP to flip the court by adding members. In a few a fringe even discussed it.

      No significant republican took it seriously.

      I expect that Democrats will have the same understanding of the consequences of escalating this in this way as republicans.

      And I would remind them that every actual breach of the “rules” was by democrats, and that ultimately each benefited republicans more than democrats.

      So go ahead.

      I am not that worried about the future. ‘

      I expect Trump will win and this will be moot.

      But even if Biden wins, democrats face a very difficult problem. Trump has proven that the economy can do better than under Obama.
      He has proven that unemployment even among minorities can go far lower than under Obama. And Trump’s results in foreign policy are incredible.

      All that is actually tied together. Few of Trump’s policy changes are reversable without ripples downstream.

      If Biden wants to expand the court – let him.
      If he wants to increase taxes – let him.
      If he wants to make college free – let him.
      If he wants to impliment M4A – let him

      Then let him live with the disasterous economy and other problems that result

      As a nation many may want a quieter more dignified Trump – but we still want Trump – not Obama.

      If Biden is elected I will pray what I prayed when Obama was elected – and hope that this time my prayers are answered.

      First that Biden will grow into the giant shoes of the president of the untied states. Obama may have been dignified, but he was a crook and a failure.

      In the alternative that everything I know to be true is actually false, that the nonsense the left espouses actually works.
      Because the alternative – AKA reality will be very bad for most americans otherwise.

      Unfortunately I do not expect either prayer to be answered.

      I expect that like Obama Biden will be less bad a president than he could be. That he will not give the left all they want, but he will give them some of it. That as a consequence we will have a weak economy – as under Obama, and a much slower drop in unemployment than we could have.

      Regardless democrats face a massive future problem. They are losing voters. Trump took the blue collar vote from them. He sought to shrink the democratic hold on minorities. Democrats are not getting back the votes they lose.

      Should they win – in 2021 they most accomplish the impossible – them must bring about a strong economy with impossibly low unemployment, and they must deliver on promises thay know we can not afford.

      So go ahead – undo everything Trump did – and return to the Obama-Biden economy and see how well you do in the next election.

      1. “Many times during my lifetime it was within the power of the GOP to flip the court by adding members. In a few a fringe even discussed it.”

        Right, but that was in a time when different norms were recognized, and there are not coincidentally more overlap between the parties and less hyperpartisanship. That’s clearly changed.

  3. Mr. Turley writes: “In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small.”

    Your opinion on Senator Cruz’s proposed constitutional amendment, Mr. Turley – is this the Republican version of “Destroying the Court to Save It”?

    https://thehill.com/homenews/senate/521736-senate-republicans-offer-constitutional-amendment-to-block-supreme-court

    “The proposed amendment simply states: “The Supreme Court of the United States shall be composed of nine justices.””

    “Cruz and his GOP colleagues have also introduced a bill that would create a point of order against legislation modifying the number of justices on the Supreme Court.”

    1. All of this is short term satisfaction at the expense of long term results.

      Just look at the court appointments since Reid changed the senate rules to get a few appointments through the senate. Today Trump has appointed about 40% more judges in his four years than Obama or any first term of any president did in their first term. He has appointed two SCOTUS judges and heading for three, all because Reid did away with the 60 vote majority. Who would bet money on his appointment getting confirmed this fall had Red not messed up?

      So fine, expand the court from 9 to 12. Load up on another three democrat judges. Guess what in 20-30 years, those judges will have to be replaced. What happens if there is a conservative president?

      Packing the court under Roosevelt was not wise nor is it wise today.

      Now if anyone wants to cement this as an amendment to the constitution, go for it. You need a super majority of states to ratify. If they ratify, then that is what America wants. And amending the constitution takes all power from the congress who can screw up a wet dream. It also limits presidential power which looking at how that office has taken power not really authorized, that also is not a bad thing.

            1. I honestly doubt that Biden will expand the court. It is far too politically dangerous.

              But should he do so – expect backlash. And remember one option is a constitutional convention.
              There are probably already enough states committed to call one. If not we are only a few states short.

              A constitutional convention can add amendments of throw the whole constitution out as it chooses.

              The results still have to be ratified. But you could see a whole raft of amendments that can not get out of congress that would be easily ratified by the states.

                1. The normal process for a constitutional amendment goes through congress – which has proved nearly impossible.

                  But the states can convene a constitutional convention without going through congress.

              1. Yeah bring that Constituional Convention on. Im offering an Amendment

                Part 1. CALIFORNIA OREGON AND WASHINGTON ARE HEREBY EXPELLED FROM THE UNITED STATES.
                Part 2. CHICAGO AKA CROOK COUNTY FORMERLY OF ILLIONOIS IS EXPELLED.
                part 3. NEW YORK CITY IS EXPELLED

                details will follow

                im thinking Canada can have them, or Mexico, who cares

                Anybody that doesn’t like it is encouraged to leave

          1. There is no “magic” number, and contra, you, SP, and even Turley FEWER is better.

            More judges does NOT result in better decisions. Fewer does.

            SCOTUS performs two functions:

            It is the court of last resort for appeals.

            That is its least important role. We could easily create a national Superior court to fullfil that function.
            Which is primarily to reconcile court decisions accross the circuits.

            The most important task is to enforce the constitution. We need few justices for that – but we need very good ones.

            SCOTUS should not hear a case that does not have a constitutional issue. That is for inferior courts.

            1. You can see Turley’s reason for wanting to expand the Court above. Some think they’re also overworked in some ways.

              1. The SC is not a social club and shouldn’t be seeing so many issues. The legislature needs to stand up and write clear legislation. Instead all sorts of things are added to protect the legislator not the country. That is why we need term limits.

              2. There is a better solution that Turley’s. That is a US superior court – or a US Court of appeals.

                That can be as large as you wish. Their role is to handle ordinary appeals. to reconcile decisions between circuits, and to reduce the load on SCOTUS.

                You keep SCOTUS at 9. You continue to allow them to take ONLY the cases they want, and you have no workload problem.

                Regardless, you do not want the court of final authority on the constitution to be too large. I would be fine with only 5 justices.
                9 is the LARGEST it should be.

                To the extent that diversity of all kinds has value – it is in lower courts. The supreme court is there for when lower courts get it wrong.
                And specifically when government infringes on individual rights.

                It is not there to make policy.

                Assorted justices such as Gorsuch and Barrett have made the actual role of the court clear – to enforce the clear language of the constution.

                If that is not to your liking – change the constitution.

        1. “Raising the number to 11 is more likely than 12. (My own idea is posted above.)”

          Sometimes increasing numbers decrease efficiency and effectiveness. If the number on the Supreme court is to be increased then it should be fully discussed by the legislature and passed with two provisos. The law should not be enacted for 4 years after the laws passage and the number of seats added should be a max of two every 4 years.

          One thing is certain. The supreme Court is not there to push legislation through. That is the job of Congress.

          1. Don’t think Dems will settle for anything less than quick reversal of the Garland/Gorsuch swing, which would require two new justices right away. But we’ll see. Biden might support your version.

            1. The Dems should focus on legislation and legislators instead of the Supreme Court as their legislature of last resort. The Supreme Court should not even be a focus to the electorate and wouldn’t be but for the fact that Dems use the Supreme Court to run around the Constitution. We have an amendment process to change the Constitution and shouldn’t be relying on 5 Justices to do that.

              1. That is such a good point Allan. Think about Federalist 51. Begin with the angels point and work outward. We need government. If government consciously limited what they do to only what is constitutional, then elections wouldn’t be so consequential and SCOTUS would be an afterthought. It is not ever mentioned but the only reason we have the most important election in our nation’s history every 4 years, is because our limited government is way, way, way outside it’s limits and our elections are all about who will be in power to abuse the rights of the rest of us. And currently, the only branch standing in the way is the Judiciary.

                1. Amen!

                  The left rolls their eyes at the point that the United States is NOT a democracy.

                  Listen too them, their history, and their attitude towards elections.

                  We know as a fact that the more democratic countries are the more authoritarian they are.
                  We also know that countries where election turnout is low are far more stable.

                  The left rants about “Voter supression” – as if all issues should be decided by 100% of people voting on that issue.
                  When in fact we are far better off as a country if voting is hard, and most of us do not vote.

                  I actively support voter ID laws – regardless of whether they reduce voter turnout (the data indicates they do not).
                  If it were not unconstitutional I would support poll taxes.
                  Mail in Voting is one of the stupidest ideas ever conceived. Voting should be hard and require thought – not trivially easy.
                  Even Absentee voting should be as minimal as possible.
                  If I could I would guarantee that a hurricane hit the entire US on election day so that only those deeply committed voted.

                  As to Democracy – even the great John Stuart Mill noted that it was the worst possible form of government. Monarch’s and dictators are ultimately constrained in their use of power – even corrupt ones. But their is not limit to the oppression a man will impose on his neighbor given the power.

              2. You left out the part about the GOP being every bit as much focused on the Supreme Court as the Dems, for exactly the same reasons. Your view of who changes the Constitution, etc, via the Court is very much in dispute, of course. Each side thinks that’s what the other does.

                1. Both parties are focused on the Supreme Court so one’s view reflects upon one’s feelings towards the Constitution. The Constitution can be changed by amendment or Constitutional Convention. I think everyone agrees about the flaws that exist in the Constitution many of which were remedied through Constitutional Amendment.

                  One basis behind making the amendment process difficult is that popular opinion can change very quickly so the amendment process is meant to slow such change down and permit the Constitution to be an anchor so we drift too far or too fast. People are fickle so they can quickly move in one direction and then in another.

                  In the last 50 plus years the Supreme Court has been used to pass legislation that was of questionable constitutionality. That meant that laws were passed by 5 members of the Supreme Court. That is the job of the legislature (that is who we voted for) who should have created laws that lived well inside of the boundaries of the Constitution. Alternatively a Constitutional amendment should have been passed instead so that the legislation would not stretch the Constitution so far that the country as a whole isn’t sure that our leaders are dealing with the same Constitution.

                  1. No one thinks they’re changing the Constitution or legislating from the bench, they all think they’re just interpreting the Constitution and law. Some think Roe rewrote the Constitution, some think Heller did. I don’t think there’s any way to avoid such differences of opinion.

                    1. What a Justice thinks is not the point. The point is whether or not the legislation complies with the Constitution. The Supreme Court doesn’t always rule the way I like but I recognize that what I like may not comply with the Constitution. Sometimes the Supreme Court does what I like but that too is wrong when it doesn’t comply with the Constitution.

                      I’m not interested in what the judges think about the law or even fairness. I am interested in the law complying with the Constitution.

                    2. I understand that. My point is that urging the Court and those who focus on it to focus on the Court not changing the Constitution doesn’t advance much because they all think they’re doing that already. It’s not a practical response to the issues involved in whether to expand the Court.

                    3. You missed the point and your basic understanding is wrong.

                      You are afraid to honestly debate.

                    4. “I understand that. My point is that urging the Court and those who focus on it to focus on the Court not changing the Constitution doesn’t advance much because they all think they’re doing that already. It’s not a practical response to the issues involved in whether to expand the Court.”

                      Your sentence is incredibly convoluted and difficult to unpack.

                      Regardless, you continue to claim that opinion trumps facts, and that your opinion trumps that of others.

                      Here is a list of famous cases in which the Supreme Court ignored the limits of the constitution.
                      A few of these are decisions by conservative courts – they are still wrong.

                      It is possible that you might like the outcome of SOME of these cases – but ALL of them are intrinsically tied to YOUR means of “interpretting” the constitution. Sebelius as an example can not be decided correctly – if the rest of these are all decided wrongly.
                      the Supreme court is not free to make up the constitution as it goes.

                      If you like the outcome of one of these cases – SCOTUS was still obligated to decide it based on the actual constitution.
                      Doing so assures that if you amend the constitution future courts will if grudgingly uphold your amendment – instead of “interpretting” it our of existance.

                      There is not a workable alternative to this – otherwise the supreme law of the land is nothing more than the whim of 5:9 or the majority of however many people you pack the court with.

                      You do not seem to grasp that there is a difference between the outcome that you would prefer and the constitutionally correct outcome.

                      Dred Scott
                      Plessy v. Ferguson
                      United States v. Cruikshank
                      Chae Chan Ping v. United States
                      Buck Vs. Bell,
                      Koramatsu,
                      Hans v. Louisiana
                      Wickard Vs. Filburn.
                      Helvering v. Davis
                      Home Building & Loan Association v. Blaisdell
                      United States v. Carolene Products
                      Williamson v. Lee Optical
                      Gonzales v. Raich
                      Baker v. Carr
                      Jones v. Alfred H. Mayer Co.
                      Runyon v. McCrary
                      Buckley v. Valeo
                      Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
                      McCleskey v. Kemp
                      Morrison v. Olson
                      Kelo v. City of New London
                      NFIB v. Sebelius

                    5. Sanpete, you have near total ignorance about the history of the Constitution and what has occurred since. That is your problem. Lack of knowledge. That leads to you dealing in word games.

                    6. “No one thinks they’re changing the Constitution or legislating from the bench,”
                      FALSE, not only do I, but all libertarians and all conservatives. The entire effort to replace the liberals on the court is specifically because for DECADES they have been ducking the constitution from the bench.

                      ” they all think they’re just interpreting the Constitution and law.”
                      The Supreme Court is NOT their to “interpret” the constitution – interpret suggests it means something different than it says.
                      They are there to determine if the actions of government are consistent with the powers granted to the federal government by the constitution. And if they are not, to strike them down. They are there to determine if legitimate acts of government unnecessarily infringe on individual liberty and if so to strike them down.

                      “Some think Roe rewrote the Constitution, some think Heller did.”
                      You seem to think that the meaning of the constitution is determined by your viewpoint.

                      Roe was very badly decided. That said there is a right to privacy and a right to control of your own body. Had Roe fixated more on the law and actual rights rather than pretending that SCOTUS should have any interest in science or medicine, the resulting decision would have assured the right to an abortion – right through the 9th month, But it would NOT have created a right to kill the fetus. That decision would have made no one happy, but would have been constitutional, and would be in no risk of being overturned.

                      AS to Heller – there is not even a question that it was constitutional – not merely uinder the 2nd amendment – but under the 14th. Read the legislative and ratification history of the 14th amendment – its authors and those ratifying it knew that it explicitly intended to reinforce the 2nd amendment AND impose it on the states by FORCE – so that blacks in the south would be able to defend themselves with guns.

                      If we strictly followed the constitution – actual machine guns would be legal.
                      If you do not like that – amend the constitution.

                      “I don’t think there’s any way to avoid such differences of opinion.”
                      Your correct, fortunately the issue is NOT about opinions. Any Justice who rules based on what the constitution SHOULD say rather than what it does, is unfit. Any justice that does not strike down laws that they favor, because the constitution bars them is not fit.

                      In the opinion of 85% of germans in 1938 Hitler was a great person.

                      Fortunately that is an opinion – not a FACT.

                      Everything is not an opinion and all opinions are not equally true or valid.

                  2. Prohibition is demonstration that the constitution should not be amended out of passion.

                    I do not know that we all agree on the flaws in the constitution.
                    But if we do we can and should amend it.

                    We should not attempt to change the constitution by judicial fiat.
                    Nor should we try to go outside the constitution by legislation.

                    The primary job of the Supreme Court is to say NO! to laws that reach beyond what is allowed by the constitution, or laws that the constitution allows, needlessly or excessively infringe on individual liberty.

                    I expect that every supreme court justice is going to be prepared to strike down all acts of government that excede the scope of the constitution or needlessly or excessively infringe on individual liberty.

                    If we disagree when SCOTUS precludes government from acting as we wish – we ammend the constitution – not change the court.

                    Any Justice that is not willing to follow the constitution and constrain government is unfit.

                    1. John, I agree with you. The problem we face is a federal government and bureaucracy that continues to grow dealing with things it was never intended to deal with. That leads to a lot of corruption and dysfunction.

                      The cure is smaller government and like intended in the Constitution let the states and people handle those issues outside of the Constitution.

                2. Yes, Republicans are focussed on getting the court the constitution requires – one that decides cases based on the laws and constitution and leaves questions of policy to the elected arms of government – so long as they stay withing the constitution.

            2. “Don’t think Dems will settle for anything less than quick reversal of the Garland/Gorsuch swing”

              There is no such Swing. Scalia a conservative died unexpectedly. Had Democrats controlled the whitehouse and the Senate they could have legitimately flipped the court. But they did not have control of both – and they could not. Ultimately Gorsuch replaced Scalia.
              Gorsuch is far more libertarian than Scalia, and that is SORT of a shift to the center not the right.
              Gorsuch is much stronger on individual rights than Scalia and much stronger on actual civil rights – substanitive due process, the 4th amendment, .. and much stronger on limited government. Much of that should appeal to the left – it would have 40 years ago.

              Kavanaugh replaced Kennedy – no swing.

              The only “swing” is the replacement of RBG with ACB. It remains to be seen how that will actually play out. ACB is like Ginsberg (and Gorsuch) a strong propoment of civil and criminal rights, substanitive due process, the 4th amendment.

              Contra the fears of the left it is not likely she will overrule Roe. But unlike Ginsberg she is likely to support limits on abortions that 80% of americans favor.

              That is not much of a swing.

              The Key differences will be on the bad decisions of the past couple of terms. The Roberts nonsensical one of a kind decisions.
              With ACB we will have none of this nonsense that you can not ask citizenship on the Census. Or that the Administrative procedures act applies to undoing acts that did not conform to it when enacted.

              “which would require two new justices right away.”

              There is no requirement at all. While you are correct that the constitution does not dictate the number of justices – nor does it dictate the ideolgical makeup of the court. If Trump is re-elected and gets to replace the remaining 3 left wing justices (unlikely) – that is just how it is.
              And that would be a very good thing.
              If Biden is elected and several of those purportedly on the right died or retired – Biden could replace them with any justice he could get confirmed.

        2. I have said for years, once you crack the door for politicians, they will eventually storm through it. So Reid opened the door for all appointments. McConnell stormed through and completed the senate rule change. Had Reid not opened the door and left decades of senate rules in place, we would not be were we are today.

          And I suspect Shumer will complete the transition when he gets control and end all filibusters.

          1. That’s a rather arbitrary distinction, between cracking the door and opening it further. I don’t think there’s any sound basis for believing that Reid’s action was the key, or the first crack. For one thing, it was in response to GOP obstruction that was itself seen as outside proper norms.

            Seems to me this movement away from norms was inevitable with the move towards more hyperpartisanship, which recognizes no norms above partisan advantage.

            1. Who owns the longest filibuster in history?
              Stromb Thurman, (D) South Carolina
              1964

              Dont give me “Republicans obstruction” caused the change. That is political B.S. The filibuster was and always has been the tool to insure a more moderating result out of the senate.

              Reid changing the rule screwed up anything moderate coming out congress, thus further polarizing America!

              1. I didn’t give you “Republicans obstruction” caused the change. What I said is that it was part of the process. It was viewed as outside the norms to filibuster just because they could. It wasn’t based on any objection to the fitness of the candidates. The norm had been that only fitness to serve should be a basis for rejection, which is what the filibuster amounted to.

                Your view of this is highly, highly selective.

                  1. More completely empty assertion. I explained how it’s selective. If you have any rational basis for disagreement with that explanation, please explain what it is.

                    1. Ron’s statement: “The filibuster was and always has been the tool to insure a more moderating result out of the senate.” is very fair and historically reasonably accurate. You did not adequately ” explained how it’s selective.” and I don’t think your response recognized that the filibuster was used for all sorts of things.

                      Harry Reid was another excellent example by Ron and you didn’t even touch on that.

                    2. Ron’s analysis is highly selective in focusing on only one event as the key: Reid’s removal of the filibuster for lower court nominees. I’ve been pointing out that was only one step of many taken by both sides over decades.

                      I haven’t objected to what you quote from Ron.

                    3. People look at the major events and then might add the minor ones. Ron gave one event and I added a second, Bork. The second is so memorable that it became a verb. We should focus on the big stuff unless we go into depth. You should just complement Ron for his response and provide one of equal significance in your rebuttal. The fact is if we each provided one incident or name alternating responses you would run out while the right had plenty of responses left.

                      The one who probably has the most knowledge on this is DSS and if he wanted to I think he could make an impression on you. You should ask him the next time he is around.

                    4. “Ron’s analysis is highly selective in focusing on only one event as the key: Reid’s removal of the filibuster for lower court nominees. I’ve been pointing out that was only one step of many taken by both sides over decades.”

                      The immediately prior constraint on the fillibuster was to limit its use on Budget bills. I beleive that change occurred in the 60’s and was supported by both parties. I do not beleive there was another change to the fillibuster until Reid’s removal of the fillibuster for Senate confirmations (not just lower courts) Reid preserved it for Supreme court nominees but not any other confirmations.
                      That was a large step. It was done unilaterally, and McConnell ditching the Fillibuster for SCOTUS appointments was small in comparison.

                      Nor is this the only Rule change of Reids that has come back to bite democrats in the ass.

                      Ron is quite correct – it is the Democrats who in EVERY instance have changed the rules and norms of the congress FIRST.

                      Just to be clear – they are fully entitled to do so – the constitution allows each chamber to make its own rules.
                      But when you obliterate traditions that have existed for decades because you have the power to do so, you should not be surprised when they bite you in the ass. I do not like McConnell at all. But he has done far less to damage the institution of the Senate than Reid.
                      And no one has damaged the House in the way Pelosi has.

                    5. The distinction between big and small in this context involves subjective values, and often no small amount of bias, and thus each side sees the steps of the other side as big and their own as small, if they even acknowledge they were movements.

                      It’s not objectively true that removing the filibuster for lower court nominees was a bigger step than obstructing them with the filibuster for reasons unrelated to fitness, or removing the veto for Supreme Court nominees. Objectively, all of those are significant moves.

                    6. Once again you are either very uninformed or afraid to deal with the questions at hand. You rely almost solely on wordplay.

                    7. “The distinction between big and small in this context involves subjective values, and often no small amount of bias, and thus each side sees the steps of the other side as big and their own as small, if they even acknowledge they were movements.”

                      Actually that is completely wrong. Everything is not subjective, and you can not make a world where everything is subjective work without killing those who disagree with you – that is why communist and socialist systems have so much blood on their hands.

                      Whether you like it or not all things are not equal. Even absent absolute truth – we can and must have relative truth.

                      Only an infinitessimal portion of all possible assertions are not demonstrably false.
                      Ref is not green, up is not down. the earth is not flat.

                      Just as we can KNOW that most claims are false – we can also know with a high degree of certainty which not obviously false claims are more likely true than others.

                      Put Simply – Reid took a hatchet to the fillibuster, McConnell, carved a tiny piece from what was left. Reid’s actions were large, McConnell’s were small. That is not subjective – just because you are blind to it.

                      “It’s not objectively true that removing the filibuster for lower court nominees was a bigger step than obstructing them with the filibuster for reasons unrelated to fitness, or removing the veto for Supreme Court nominees.”
                      Actually it is – though you would have to correct serveral errors in your claims. Reid did more than eliminate the fillibuster for lower court nominees.

                      “Objectively, all of those are significant moves.”

                      Incorrect. All these moves were constitutional, they were all political. But they were not all significant or equal.

                      If Democrats regain the Senate they have already made clear – rather than fix the problem and restore the fillibuster in its entirety they will eliminate it completely.

                      You fixate on hyperpartisanship – this move will polarize congress further. It will encourage extremist moves.
                      That is objectively correct.

                    8. SP – I have yet to hear you explain anything – atleast not if “explain” is to mean persuade using facts, logic, reason.

                      What I hear from you is spin, appeals to emotion, appeals to authority, a sprinkling or ad hominem.

                      Make and argument.

                      I have little interest in a world where the tools you use to “explain” actually work.

                      Facts, logic, Reason – not fallacies.
                      It is not all that hard.

                      But it might show your reflection in the mirror as not all that flattering.

                  1. Hard to follow that chart in this context, as it seems to be about filibuster in general by both parties, but yes, each party has done its share in reaching this point.

                  2. The fillibuster is a tool that the minority uses to impede the majority from infringing on their liberty.

                    Just as numerous other constitutional mechanism,

                    You can not draw conclusions about the use of the fillibuster based on frequency.

                    Raping people is bad, raping lots of people is worse.
                    Protecting people from rapists is good, protecting lots of people from rapists is very good.

                    You can not conclude whether an action is abuse based on frequency – you must know all the facts.

                1. Again the criteria you are fixating on was first pushed by Democrats.

                  Opposition to Bork was ideological. I happen to agree with that opposition. But the FACT is that Bork was immenently qualified for SCOTUS and had zero issues with Fitness. Bork was an early modern originalist, but his version of originalism defered greatly to government – even more so that Scalia.

                  If you claim to be an originalist or textualist, you can not write portions of the constitution out of existance – such as the 9th amendment, or later the 14th. Both of which state that the rights of citizens are limitless, and the domain of government limited.

                  Opposition to Thomas was similarly distinct from “Fitness”.

                  Conversely RBG was atleast as politically contentious as Bork, and yet nearly all republican senators voter for her – because she was inaurguably fit.

                  The very issue you fixate on became a problem when democrats changed the rules.
                  Absolutely Republicans subsequently took advantage of them.

                  If you doubt me, I would ask you when was there a contentious effort to confirm ANY democratic supreme court justice ?
                  What democratic nominee had their character assaulted, and their personal life torn apart ?

                  The only democratic nominee in my lifetime that was not confirmed was Merritt Garland – and Garland was not personally attacked.
                  The Senate of one party refused to confirm or even consider the nonimee of another in an election year.
                  Power politics ? Absolutely. As Obama said elections have consequences.
                  But it was not a deviation from any historic norm. In far less contentious era’s lame duck nominees were allowed to languish.

                  Was fitness to serve the actual past standard ? arguably yes. But Ideology has been a criteria since Bork.
                  The shift to new standards has been in all cases driven by democrats, and in all cases it has come to benefit republicans.

              2. “The filibuster was and always has been the tool to insure a more moderating result out of the senate.”

                Incorrect. Even Thurmond’s filibuster demonstrates that.

                The Filibuster and most of the complex rules of the house and senate as well as those within the constitutuion exist to make obstructing the expansion of the federal government easier.

                Universally these rules have lead to government doing less, moving slower, or not acting at all. And despite not acting the world has not come to an end.

                Our founders grasped something we have more formally learned in modern times – that law/government that has more than about 10% of the people willing to disobey will ultimately fail. There are alot of criteria required to justify the use of force against others. One of those is super majority support – not merely majority support. Any act of government that can not obtaine and sustain the support of supermajorities should never pass and should be repealed.

                When we act together using force, we must be near unanimous.

                1. J.S. “Incorrect. Even Thurmond’s filibuster demonstrates that.”

                  One mans opinion. May or may not be correct.

                  “The Filibuster and most of the complex rules of the house and senate as well as those within the constitutuion exist to make obstructing the expansion of the federal government easier.”

                  And if that is not a “tool to moderate the senates results” why do we consider the senate the more moderate body?

                  It is the definition that one puts on “moderate” and either of us can be correct. You think obstructing passage of bills is the way government does less.
                  My definition in reducing what the government does can also be changing legislation to a more moderate position.

                  Just because you say it is not, does not make it so.I was only posting how I view the senate rules before Reid screwed them up.

                  1. Thurmond was fillibustering civil rights legislation – are you saying that he was using the filibuster to acheive a moderate outcome.

                    Sorry Ron – the Filibuster MIGHT at times result in moderation. But there is no guarantee of that.

                    It is just as easy to use the filibuster from an extreme position to thwart moderate legislation.

                    I personally think the filibuster is a good idea. Bit I am not pretending that it always of even mostly drives moderation.

                    And separately that moderation is always good.

                    “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.”
                    Barry Goldwater

                    I would hope we both agree with Goldwater on that.

                  2. The behavior of the fillibuster as well as the other rules and constitutional impediments is not towards moderation – it is towards limited government – towards libertarianism.

                    You correctly do not consider libertarianism moderate – correct and moderate are unrelated terms.

                    “You think obstructing passage of bills is the way government does less. ”
                    It is one way.

                    “No man’s life, liberty, or property are safe while the legislature is in session.”
                    Gideon J. Tucker

                    Your definition is circular.

                    “Just because you say it is not, does not make it so.”
                    Correct, that is why I provided an example of a filibuster that was by no means moderate.

                    “I was only posting how I view the senate rules before Reid screwed them up.”

                    I beleive we both share support for the prior rules.
                    What I disagree with is your claim that the fillibuster always or mostly leads to moderation.

                    First – it does not,
                    2nd, I do not consider an ill-defined “moderation” a consequential value.

                    I am a principled libertarian – I do not care whether that is left, right, moderate or extreme.

                    I care that it is correct.

                    And to be clear I am not correct because I am libertarian, I am libertarain because it is correct.

                    Depending on the issue that places me on the left, the right or sometimes the center.
                    I do not care. Neither the left,t he right or the center are correct about everything (or most things)

            2. The Bork hearings was a milestone and Teddy Kennedy, the Chappaquiddick triathlon winner (Drink, Drive and Swim) was a major player there and elsewhere. No morals.

              1. People who knew Kennedy personally including Orrin Hatch, and someone I knew who worked for him, strongly disagree with both your casual disrespect and your claim he lacked morals. Both points are typical of hyperpartisanship.

                Do you recognize how big a role hate plays in your politics? Hyperpartisanship naturally turns quickly to hate. Fox, MSNBC and the like are filled with hate.

                1. “People who knew Kennedy personally including Orrin Hatch, and someone I knew who worked for him, strongly disagree with both your casual disrespect and your claim he lacked morals. Both points are typical of hyperpartisanship.”

                  Really? Most of us have friends that we might associate with whose morals might not meet our standards yet we still associate with them and being the decent people we are we don’t take every chance we have to call them immoral bas.tards.

                  Let’s start with Kennedy’s morality right at the point where he went over the bridge and the girl died. Do you wish to tell us your version of the story? Then we can discuss his hypocrisy in places he considered home. Then we can talk about his escapades at Au Bar and Bork. Afterwards we can discuss him further to find out what you find morally acceptable.

                  “Do you recognize how big a role hate plays in your politics? Hyperpartisanship naturally turns quickly to hate. Fox, MSNBC and the like are filled with hate.”

                  You make a lot of empty statements while mind reading. I don’t hate one for their political ideology unless that ideology is promoting violence and pain. I don’t beat them up or destroy their property if their politics differ from mine so I think we should have a discussion regarding your morality and how much hate plays a part in your ideology. We can start with Antifa and BLM that have been burning down neighborhoods. You seem to find that acceptable enough that you don’t stand up and say STOP.

                  1. I’m not interested in discussing the particulars of Kennedy’s morality. What I said above is true: those who actually knew him and worked with him disagree entirely with what you said. They admired him for his moral commitments, even when they disagreed.

                    What you say answers my question. You aren’t aware of the role hate plays in your politics. You seem to imagine that it doesn’t show in what you say. No mind reading is required to see hate in what you said about Kennedy, or in other things you say.

                    Your remarks about my views of Antifa and BLM are bizarre, as though I should be sprinkling my comments with random remarks about them. And talk about bad mind reading! It happens that you’re manifestly wrong, as so often:

                    https://jonathanturley.org/2020/10/18/conservatives-attacked-by-blm-and-antifa-supporters-in-effort-to-hold-free-speech-rally-in-san-francisco/comment-page-2/#comment-2015328

                    1. “What I said above is true: those who actually knew him and worked with him disagree entirely with what you said. They admired him for his moral commitments, even when they disagreed.”

                      Do you mean they liked what he said or what he actually did. Yes, he had people around him that did a good job in using the Kennedy name but that was not Ted. People may agree with the speeches because they represented an ideology agreeable to many. But the man himself was a hypocrite, not terribly bright and lacked moral principles.

                      “What you say answers my question. You aren’t aware of the role hate plays in your politics. ”

                      That is a foolish thing to say. Hate is more likely coming from the left and from you.

                      “No mind reading is required to see hate in what you said about Kennedy,”

                      I don’t generally hate people including Kennedy but it seem you approve of him causing the death of Kopechne after driving drunk and then going into hiding to protect himself instead of her. I guess you feel it OK that he proposes wind turbines except when he sees them in his back yard. I guess you feel it OK to have blacks forced to carry green cards on Palm Beach Island where Kennedy frequently stayed (The Kennedy Mansion). He talked a lot about civil rights, but civil rights wasn’t included where he lived.

                      By the way, just to let you know how “hyper partisan” you have become in you attacks on me wrongly calling me a hateful person. That is your type of politics not mine.

                    2. Again, those who disagree with you about Kennedy include Orrin Hatch and others who worked with him, didn’t only listen to his speeches, who unlike you actually knew him well for decades.

                      Your hate is plain because it’s the opposite of what love is, which is charitable in how it views others. Very importantly, love removes the beams in one’s own eye before judging the motes in the eyes of others.

                      The hate of leading personalities on the other side is a major feature of hyperpartisanship on all sides. Trump, Obama, Bush, Pelosi, McConnell, etc etc, they’ve all been objects of widespread vile hatred.

                      You can see from this line of thought, by the way, how hyperpartisanship is anti-Christian. So much hate, so little love for the perceived enemy. Outlets like Fox and MSNBC are all about collecting the motes in the eyes of the other side, the opposite of Christian teaching, which teaches looking inward first. And it’s not just a glance needed. It’s hard to get those beams out, can take years.

                      But such points, however plain and simple, make no impression of hyperpartisans except as they think they apply to the other side, ironically.

                    3. You are a hateful woman and express your hate by lying.

                      One can see your lack of morals in what you say. To you Kennedy is a wonderful person. He drove drunk ( not infrequently) killed a woman and the first thing he thought about was his career. Pretty much like you I guess. He was a hypocrite and I mentioned two items that demonstrate his hypocrisy. Why should anyone think you aren’t a hypocrite.You apparently think his actions were fine. Did you ever meet him at Au Bar? Drunk and his zipper was always open. But he’s swell in your eyes. Your standards are pretty low.

                      You engage in word games and very little more but everything you do points to a dishonest hateful hypocrite.

                    4. “Again, those who disagree with you about Kennedy include Orrin Hatch and others who worked with him, didn’t only listen to his speeches, who unlike you actually knew him well for decades.”

                      Again appeals to authority are fallacies – they are not valid arguments – and I am no fan of Orin Hatch.

                      “Your hate is plain because it’s the opposite of what love is, which is charitable in how it views others. Very importantly, love removes the beams in one’s own eye before judging the motes in the eyes of others.”

                      SP it is self evident that you have no clue what hate is, what love is, what charity is.
                      As you observe – remove the beam from your own eye before judging the mote in others.

                      I would further note that emotion has absolutely no place at all in government – nor does charity,
                      It is immoral to use force against others without justification – EVEN TO TRY TO ACCOMPLISH GOOD. And government is FORCE.

                      “The hate of leading personalities on the other side is a major feature of hyperpartisanship on all sides. Trump, Obama, Bush, Pelosi, McConnell, etc etc, they’ve all been objects of widespread vile hatred.”

                      I know few that hate Obama, or Kennedy, or Biden or Pelosi, or .. you conflate disagreement with hatred, you also conflate justifiable moral condemnation with hatred.

                      You do not know what hate is, but you certainly know how to hate.

                      “You can see from this line of thought, by the way, how hyperpartisanship is anti-Christian. So much hate, so little love for the perceived enemy. Outlets like Fox and MSNBC are all about collecting the motes in the eyes of the other side, the opposite of Christian teaching, which teaches looking inward first. And it’s not just a glance needed. It’s hard to get those beams out, can take years.”

                      Please do not lecture anyone on christianity(or likely any religion) like everything else you are clueless.

                      Cite a single text in which Christ imposed a societal duty.
                      Matthew 25:31-46
                      Maybe it will be easier for you to grasp set to music.
                      https://www.youtube.com/watch?v=Ix8ddosjg-k

                      Finally – I do not know what a hyperpartisan is.
                      But I do know fact and fiction, truth and falsehood, and I do know actual hate when I see it.

                      It is not the right – it is the left that is drowning in hate.
                      And it is obvious.

                    5. Wow. If you’re trying to illustrate what I said, you’re succeeding. Your defense mechanisms are fully engaged, so nothing I say can reach you for now. I hope you’ll figure these things out for yourself someday. Hate is bad for the soul, and for everyone else.

                    6. Sanpete, you have already gotten to the point of so much hate it spills out of you and you try to throw it on everyone else. Over and over again I presented data and dealt with the issues. You couldn’t handle it just like you couldn’t handle the email letter implicating Joe Biden.

                    7. Ad Hominem – and argument to the person – not the matter being debated.

                      When you engage in mind reading when your response is entirely about Allan – not the issue – that is ad hominem.

                      Hate is bad for the soul – take your own advice – if you feel hated – maybe that is self hate.

                      But you can justifiably beleive that I see you are morally and factually wrong – because you are.

                      That is not hatred – it is truth.

                      What has anyone here said about you that is an example of hatred ?
                      Allan and I disagree with you strongly. You are obviously both factually and morally wrong.
                      That is not hatred, it is truth.

                      After I post this I will not think of you again – until I read your next error filled post.
                      You have no place in my life. There are actually times when hatred is justified – few of us would question hatred of Hitler or Stalin or Pol Pot.
                      But justified or not – you are not hated, though you are hate filled.

                    8. “I’m not interested in discussing the particulars of Kennedy’s morality.”
                      Of course you are – you opened the debate on the morality of Ted Kennedy.

                      “What I said above is true: those who actually knew him and worked with him disagree entirely with what you said. They admired him for his moral commitments, even when they disagreed.”
                      All you are doing is demonstrating that those in the Senate – some on both parties are themselves morally bankrupt – I have no problem agreeing with that.

                      Remember in 1938 85% of germans voted for Hitler. Popularity is not morality. I would further note that the Nazi’s – and fascists (and communists) all were on moral crusades – even the most vile of people are capable of framing their immoral conduct as somehow moral.

                      Ted Kennedy was NOT moral – that is self evident. Anyone regardless of party claiming otherwise is either deluded, immoral, or unable to face the facts.

                      “You aren’t aware of the role hate plays in your politics.”
                      I am quite aware of the role that hate plays in politics – the entire left is besotted with hate and has been for a long time. But it is far worse today.

                      Any claim that there is some consequential issue with hate on the right is ignorant of the FACT that the right has moved to the center on all the issues you fixate on. In fact on all the issues that you think the right is hatefilled – it is YOU that is full of hate.
                      You do not want a color blind society – you want the same thing Richard Spensor (and Hilter) want, you only have different views on who should be on top. That is HATE.

                      In my community (in the north east) in the 70’s there were KKK rallies that were attended by as many as 3000 people.
                      I doubt there are 3000 members of the KKK in the US. I doubt there are as many white supremecists in the US as antifa in portland.

                      You are fighting a battle that is already over – and you are demonizing people who are not as you claim.

                      “You seem to imagine that it doesn’t show in what you say.”
                      I see lots of obvious hatred in your remarks. There is none in Allan’s.

                      “No mind reading is required to see hate in what you said about Kennedy, or in other things you say.”
                      Ted Kennedy got drunk, got into a car with Mary Jo Kopecknick, drove it into a river and left her to die.
                      Those are all facts, those are all moral failures.
                      As evangelicals say “Hate the sin, love the sinner”

                      The hate I see here is YOURS.

                  1. You mean when he was a student. Lots of young people are asses, but some grow up eventually. If you disagree with what I said, you’ll have to address his life as a whole.

                    1. It wasn’t just when he was young and a student. His problems went with him through life until the time of his death.

                      His long term personality was adequately displayed at Chappaquiddik.

                    2. I can’t help it if you think running away from killing someone represents a decent man. You seem to stand up for indecency. Take note how you stayed away from the facts.

                      You don’t know what those people thought about the man Kennedy. You might know what they thought about him as an ally. You are too disingenuous

                      No matter what facts are presented you just walk away depending on word games. You have no credibility.

                    3. “Again, those who knew him best disagree completely. But hate is strong and hard to break.”

                      I did not meet Hitler personally – but I know he was a bad person. Those who knew him best disagree completely.

                      And their you are jumping to hate again.

                      Ted Kennedy acted recklessly and without thought for anyone but himself and betrayed a moral duty to others.
                      That is a fact – and a serious one. It is not hate.

                      Under some circumstances it is forgivable – but forgiveness requires penitence,

                      Further forgive and forget are not the same.

                      When people fail morally and egregiously we can forgive them – but we can never forget, and we can never trust them again.
                      That is not hate, that is ethics and morality.

                      You constantly tell us all about Trump’s moral failures – with a great deal of inaccuracy, but you rightly expect all of us to condemn and reject Trump – if they were true. Yet I have yet to hear a claim that Trump’s recklessness killed another person.

                      You hate Trump – for much lessor alleged failures than Kennedy’s real failures – and you wish to rant that I or others are full of hate ?

                    4. Your defense mechanisms prevent you from understanding even the simplest points (hint: Hatch was generally not an ally). What I’ve said is plain enough, should you ever decide you want to understand it.

                    5. You are such a simpleton. There were many friends across the aisles years ago. Don’t forget RBG and Scalia were good friends. It’s amazing that it took you so long to understand these things that most people have known for decades.

                    6. Hint: Appeals to authority – particularly bad authority are not valid arguments.

                      And Orin Hatch is not an authority.

                    7. “You mean when he was a student. Lots of young people are asses, but some grow up eventually.”
                      Few that I have ever seen. Politicians tend to be asses for life – regardless of party.

                      “If you disagree with what I said, you’ll have to address his life as a whole.”
                      So do we measure Ted Bundy by the heinous rapes and murders he committed – or his life as a whole ?

                      Regardless, I have no problem with giving those like Kennedy the opportunity to change, to reform to do better in the future.
                      But that does not mean we forget their pasts. And forgiveness requires repentence, something KEnnedy would know as a catholic and never managed.

                2. Sorry SP – Chapaquidick is a gargantuan moral failure.

                  Hitler was a vegan and treated dogs well – that did not make him a moral person.

                  Real Character is what shows when things are tough, when moral action might be to your own detriment.

                  Charlie Rangel and I likely did not see eye to eye on anything politically – and later in life he seemed too willing to take the perqs of his position.

                  But Rangel not only fought in Korea, but participated in the fighting east of the Chosen River.
                  The US Military essentially abandoned tens of thousands of US Troops who were surrounded by almost a million Chinese soldiers and over several weeks these forces fought their own way back. Not a single survivor was not wounded – and most of the wounded were still fighting.
                  They fought without support, through valleys, that armoured units had not been able to get through before.

                  This is NOT Teddy Kennedy. This is NOT someone who would flee the scene of an accident that he caused and leave someone else to drown.

                3. “Do you recognize how big a role hate plays in your politics?”

                  Yes, none. SP look in the mirror – YOU are the one filled with hate.

                  The rest of us – we MIGHT not like your ideas – and they are pretty abysmal, but no one hates you.

                  Look arround the world – Richard Spensor thinks Trump is a disaster and is voting for and endorsing Biden – because the values of Spensor and the left are in sync.

                  You are racists, You are sexist,
                  You seek to divide us all into groups and pit them against each other, and tell them all they are oppressed and incapable of coping without your help – how arrogant !

                  I do not give a $h!t if you are male, femaile or a little bit of both. I do not care if you are gay or straight or something else. I do not care if you are male or female or something else.

                  Nor do the vast majority on the right today. I used to say that the left won the culture wars – but that is not true. Because after acheiving success you have blundered on. You have gone from oppressed to oppressor.

                  1984 is a Dystopia – not an instruction manual.

                  There is no difference between favoring whites and favoring blacks, Between favoring heterosexuals and favoring homosexuals.

                  When you fixate on past oppression – you make the same mistake past oppressors did.

                  There is no difference between Jim Crow and protected classes – there is still an opressed and still and opressor and government is still favoring the oppressor by force.

                  The Hatred is yours.

                  There are no white supremecists burning down our cities – of the handful you can find today.

                  “Hyperpartisanship naturally turns quickly to hate.”

                  How has the right changed in the past 10, 20, 40 years ?
                  The power of evangelical christians has diminished – rather than seeking to impose their morality on others by force, they just wish to be left alone.
                  There was no violent revolt over gay marraige. The country is still fighting over abortion – because it does not divide so well as you claim on ideological lines – almost all americans agree with Bill Clinton – Abortion should be safe, legal and rare. Something like 85% of the country would support a ban after 24 weeks.
                  But almost nobody is ranting about gay marraige.
                  There is pretty much no one on the right who cares much about Trans-sexuals. To the extent there is still any conflict, it is because peodophiles can claim to be transexual and the entire country whiggs out over the sexual abuse of children.

                  On issue after issue regarding minorities the right has moved to the center.

                  The Tea Party was a shift in focus on the right from Social to economic issues.
                  And with few exceptions – such as trade the Tea Party is correct on economic issues.
                  Individual liberty WORKS – it works with respect to sexuality, it works with respect to the economy.

                  It is not the “right” that has become “hyperpartisan” but the left.

                  In fact the only thing unusual about Trump is that he has adopted the alynskyite tactics of the left and used them against the left.

                  If you hate Trump’s behavior – look in the mirror, it is your own, and it has been for decades.

                  Worse much of the crap you accuse Trump of he does not do – but you do.

                  You can rant over how Trump made his wealth. But what he did NOT do, is swill at the public trough.
                  Trump is Not Biden or Pelosi, nor are Trump’s children the same as their children.
                  You can dislike The trumps, but they have taken nothing from you.
                  They make their wealth by trading value for value – not selling out the public.

                  Right now as Biden claims more Russian meddling – he and you ignore the fact that once again Putin is favoring the democrat.

                  The IC has found that China, Iran and Russia are all meddling in the election – against Trump.
                  But those of us who are not blind did not need the CIA to tell us whose side the despots of the world are on.

            3. Reid did not crack the door – he swung it wide open. McConnell merely pushed the door from 85 degrees to 90.

        3. Only a left wing nut beleives that you need to interpret reality to get history.

          The fact is Reid changed the rule on votes for judicial confirmation.
          That made it far easier for both parties to nomimate more “extreme” judges – and republicans benefited from that thus far more than democrats.

          1. Lots of people are naive enough to believe their version of history is the objective one, but those people seldom agree what it is. There’s a great deal more to this story than the one bit you focus on.

            1. There are no versions of reality. History is SUPPOSED to be the accurate reporting and analysis of past reality.

              As you note there are many versions of history – those that are not accurate with respect to reality are both wrong and immoral.

              “There’s a great deal more to this story than the one bit you focus on.”

              No! There is less. Get it right – or go away.

              If a core objective in everything that you do is not rooted in an accurate grasp of an reliance on facts – then you are a danger to yourself and others.

              In Theory comunism is a wonderful idea, It is unbeleivably appealing – particularly emotionally. But for many reasons – some having to do with human nature, some that are more fundimental than that – it does not work, it can not work, and the efforts to make it work have resulted in more bloodshed than all other causes and ideologies in human history COMBINED.

              Facts, matter, reality matters.

              If you wish to argue that in some instances facts and reality are difficult to find – I can accept that. But the sometimes difficulty in sorting out the actual factual consequences of different actions, does not alter those consequences – that were find the truth sometimes hard to find does not mean it does not exist. Or that there are multiple competing valid truths.

              Finding the truth might be difficult, but that difficulty does not make what is false true.

          2. John, many facts can be determined purely objectively, but often the interpretation of the relevance and contex of facts depends on “weltanschauung” ie world view and that is always at its root a matter of philosophical convictions. Interpreting reality is foundational for almost all deriavative social, political, and economic matters

            Leftists are “tuned into” this and everybody else should wise up about it too.

            Leftists actually derive a lot of their practical power from their command over critical institutions like universities that can determine WHAT and HOW the young people think, which over decades, has given the Left more and more pull.

            The only long term way to reverse this is to regain control over universities and begin the process of rectification. It must happen with vigor and thoroughness.

            The good news is the entrenched Leftist viewpoints actually offer some of the tools that are needed to do the job.

            Those tools are often coercive to one degree or another. But they are precisely what can be used to set some of these things right for the long run.

            To accomplish this, everyone who wants to unhorse the Left, has to first abandon the old Enlightenment bromides holding us back.

            This is why I recommend the political works of Leo Strauss and Carl Schmitt

            1. The interpretation of facts, and facts are independent.

              Facts are still facts.

              Absolutely you can shape your interpretation based on your world view.
              Alternatively you can rely on logic.

              If you choose the latter, conclusions properly drawn on facts will prove to be objectively true.

              But I would further note that even your “weltanschauung” approach ultimately leads to the same place as logic – given ONE criteria, that you do not accept contradictions in your “weltanschauung”.

              I would further note that we do not need absolute truth, all we need is relative truth and we still get to the same place.

              All things are not equal. All oppinions are not true, all assertions are not true, even if we can not establish absolute truth, we can still work with what we have and arrive at a consistent set of relative truths, with an incredibly miniscule probability of Error.

              If A is 95% probable to be true, and B is 80% probable to be true and we have C which we hope is true.

              If A implies B and B implies A while either A or B imply ~C then it is highly probable that C is false.

              Put simply we can score all out “interpretations” and solve the system with a high probability that we will only get a single consistent result.

              Overall I am less worried about the future than you appear to be.

              The leftist world view does not work.

              Lets just say in a few days that Biden is elected – and even that the democrats sweep the house and Senate.

              Now they must deliver. And they must do so without pissing more people off.

              Leftism suffers from the fundimental flaw in democracy – majority rule.
              The majority is not homogenous. If 51% of people choose A over B and 51% of people choose C over D – there is nothing that requires that A and C are congruent.

              If with each majority decision of those in power in government that decisions thoroughly pisses off 10% of people such that they will never vote for those in power again – and the overlap between that 10% that is thoroughly pissed off is not 100%, then with each act of government fewer and fewer people support that government. Inevitably activist government loose the support of the majority.

              So that is one problems that a wining democratic party will face in January.
              Another is that we will ALL forget over time the things about Trump that offend us – because they are not consequential.
              But absent greater success by a Biden administration we will NOT forget the accomplishments of Trump.

              While trump greatly exagerates his accomplishments, He has not been the best president in 40 years, he has however outperformed every president in the 21st century.

              Most of Trump’s policy changes are interconnected. Biden can not reduce fracking without abandoning Trump’s guarentee of NG for Europe – his concession to get Europe to take more responsibility for its own defense, which comes at the expense of Russian and the Mideast.

              So end fracking and ultimately you increase Putin’s leaverage in europe and the world, You destabalize the mideast, you force US forces to redeploy to the mideast and you weaken the asian alliance Trump has built to reign in China.

              And that is just one facet of all this – Trump did not deliver the greatest economy of the past 40 years – but he did deliver the strongest economy of the 21st century.

              The Obamites have been telling us all – this is the best that can be done, we are in a new era, we are at peak capitalism or whatver nonsense they are shilling. Trump unequivocally proved that wrong.

              Biden will not be judged against Obama, he will be judged against Trump.

              Biden most deliver – atleast some parts of some of his far left promises, and he can not do anything that will not negatively impact the economy.

              No matter where he tries to strike the balance – he will fall off the tight rope. If he does not please the left – they have made clear they will riot. If he tanks the economy he will lose the center.

              Put simply if they win it will “suck to be a democrat”

              They must deliver to both the left and the center – and they can not.

              They are on the wrong side of how things actually work.

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