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GO NUCLEAR! (Response to NRO Editorial)
16 December 04 | Lancey Howard

Posted on 12/15/2004 11:23:35 PM PST by Lancey Howard

The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".

(The NRO editorial and the accompanying Free Republic thread can be found HERE.)

The NRO editors believe that it would be wiser for Republicans to play the "Democrats are obstructionists" card during the political campaign season and hope that the folks who comprise the malleable "middle" (the clueless "undecideds" like the people on the street who get interviewed by Jay Leno) save the day for the rest of us by taking their squishy "rage" out on the Democrats. No thanks.

THE SLIPPERY SLOPE

First of all, let's sum up how we got to where we are today and where we will inevitably end up unless something (the "nuclear option") is done about it.

For the first 200 years of our nation's existence, the vast majority of Presidential judicial nominees were confirmed after legitimate "advice and consent" hearings and an up-or-down vote. Not a whole lot of public attention was even paid to lower-court nominations and most were confirmed by the Senate (regardless of party alignment) with little fanfare or controversy. Even Supreme Court nominations, while obviously generating considerably more interest, were largely considered done deals, occasional burps like LBJ's Abe Fortas notwithstanding.

Then, in the 1980s, everything changed.

During the Robert Bork confirmation hearings the Democrats devised and unveiled the smear tactic now known colloquially as "Borking". Over the next fifteen years or so, the Democrats fine-tuned and expanded this "art of the smear". At one point they conducted what was for all intents and purposes an inquisition of Supreme Court nominee Clarence Thomas. Thomas himself referred to his "Borking" by the Democrats as a "high-tech lynching". Indeed it was. Fortunately, the Democrats' attempt to destroy Thomas failed and he was ultimately confirmed. It was also fortunate that the Democrats had not yet "progressed" to where they are today.

Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!

PICK YOUR CLICHE

"The toothpaste is out of the tube".... "The genie is out of the bottle".... pick your cliche; the bottom line is that after 200 years of working just fine, the Constitution of the United States has been irreversibly perverted by the Democrats. The 200-year tradition of Senate "advice and consent", as envisioned by the Founders and set forth in the Constitution, is gone forever.

The Democrats are fully aware that as a consequence of taking the drastic step of routinely filibustering judicial nominees, virtually every nominee to a federal bench who is sent up by future Democrat Presidents (and there will likely be some, like it or not) will be turned away by the Republicans as a "liberal judicial activist". Tit-for-tat. What goes around comes around. What's good for the goose is good for the gander. Etc. Pick your cliche.

RECESS APPOINTMENT MERRY-GO-ROUND

So here we are. It's a whole new world for the judiciary and it is a world where appointments to federal benches, including the Supreme Court, will be primarily recess appointments. It's the inevitable bottom of the slippery slope and if we are not there yet we are closing in fast. As the current lifetime appointments retire or die off, the various federal benches (including the Supreme Court) may as well have turnstiles installed as each new President packs the court with his own recess appointments (which last only for the duration of a Congressional term) and the previous President's recess appointments go home. "Advice and consent" be damned. That stuff is obsolete.

This will eventually lead to a situation where in times of a Republican Presidency the courts will be loaded with "strict constructionists" who take the Constitution seriously and in times of a Democrat Presidency, with liberal activists who make rulings based on the chic political correctness of the day. (The Constitution is a "living document" don't you know. If it wasn't, it would include a process for amendment..... Oh, wait....)

Every time there is a switch in the party that controls the Presidency (resulting in the courts being once again turned upside down), the motions and the lawsuits will rain down like cats and dogs and reversals will be the rule of the day. The judiciary branch will be in a constant state of utter chaos.

Congratulations, Democrats.....

We will soon arrive (if we have not already arrived) at a point where the only way a nominee of any consequence will ever get confirmed to a lifetime appointment is if a President can get 60 votes in the Senate (enough votes for closure against a filibuster). This will normally mean a President must have a Senate comprised of at least 60 members of his own party. History shows us that this is a very rare situation.

But imagine that this rare situation someday comes to pass. The Supreme Court, filled with recess appointments, could then be filled with NINE fresh lifetime appointments. Now imagine that the lucky President who finds him or herself in such a position is some future version of Hillary Clinton. (Roll that one around in your head for a minute.... carefully.)

THE "NUCLEAR OPTION"

On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.

This opportunity must not be squandered.

As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections; Your Opinion/Questions
KEYWORDS: filibuster; filibusters; judicialnominees; judiciary; nuclearoption; nukuler; supremecourt
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1 posted on 12/15/2004 11:23:35 PM PST by Lancey Howard
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To: Lancey Howard

Nuke the Whales!


2 posted on 12/15/2004 11:24:34 PM PST by Paleo Conservative (Hey! Hey! Ho! Ho! Dan Rather's got to go!)
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To: Lancey Howard

I believe that this is my first full-blown essay here at Free Republic. Any comments from anybody, including critique of my writing style (such as it is), would be greatly appreciated.


3 posted on 12/15/2004 11:25:27 PM PST by Lancey Howard
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To: Lancey Howard

If anybody has a ping list for people interested in the judiciary, would you please pass this thread on? Appreciate it....


4 posted on 12/15/2004 11:27:30 PM PST by Lancey Howard
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To: Lancey Howard

Your writing style ("such as it is") is great. The essay is well-reasoned with just the right sense of urgency.


Write more of these please. I'll wait here.


5 posted on 12/15/2004 11:29:41 PM PST by Petronski (I'm not always cranky.)
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To: Gritty; mrsmith; rcocean

Ping.


6 posted on 12/15/2004 11:33:17 PM PST by Lancey Howard
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To: Petronski

Thanks!


7 posted on 12/15/2004 11:33:58 PM PST by Lancey Howard
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To: Lancey Howard; GeronL; 4ConservativeJustices; MeekOneGOP; lawgirl; Buckhead; holdonnow; ...
The way I see it, since the U.S. Senate never ratified the Nuclear Test Ban Treaty, we have the right to exercise the "nuclear option."

But only on people like Leahy, Schumer and Durbin; Russia's out of bounds for now.

8 posted on 12/15/2004 11:36:38 PM PST by Do not dub me shapka broham (Why did it take me so long to come up with a new tag-line, huh?! What's up with that?)
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To: Do not dub me shapka broham; Congressman Billybob

But those clever Russkies had better behave themselves....




I can't tell if your pinglist includes Congressman Billybob, so I'm pinging him here.


9 posted on 12/15/2004 11:38:25 PM PST by Petronski (I'm not always cranky.)
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To: Lancey Howard

Nuke them till they glow. Then shoot them in the dark.


10 posted on 12/15/2004 11:41:09 PM PST by BigCinBigD
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To: Lancey Howard

I think it's excellent work, Lancey! It would need only minor editing to be worthy of publication.


11 posted on 12/15/2004 11:43:01 PM PST by Dont Mention the War (W2: Coming January 20, 2005! Be There!)
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To: Lancey Howard
But imagine that this rare situation someday comes to pass. The Supreme Court, filled with recess appointments, could then be filled with NINE fresh lifetime appointments. Now imagine that the lucky President who finds him or herself in such a position is some future version of Hillary Clinton. (Roll that one around in your head for a minute.... carefully.)

I was clipping along pretty good until I got to this bloodcurdling "what if", a thought so horrid that I'll need electroshock therapy to cleanse my brain of it.

Nuke the bastards and let them whine - anything less a crime against humanity.
12 posted on 12/15/2004 11:45:15 PM PST by Jaysun (I'm pleased to report that Arafat's condition remains stable.)
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To: Gorjus; Leto; oldtimer

Ping.


13 posted on 12/15/2004 11:48:26 PM PST by Lancey Howard
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To: Do not dub me shapka broham

Thanks for the pings!


14 posted on 12/15/2004 11:50:20 PM PST by Lancey Howard
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To: Lancey Howard

BUMP


15 posted on 12/15/2004 11:51:00 PM PST by nickcarraway
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To: Lancey Howard
No problem.

-good times, G.J.P.(Jr.)

16 posted on 12/15/2004 11:51:58 PM PST by Do not dub me shapka broham (Why did it take me so long to come up with a new tag-line, huh?! What's up with that?)
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To: Lancey Howard

well done! looking forward to more...would you put me on your ping list of your originals plz?


17 posted on 12/15/2004 11:56:09 PM PST by Zeppelin (If builders built the way programmers program, the first woodpecker would destroy civilization.)
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To: Zeppelin

Thanks. I don't usually do vanity editorials like this, but I was responding on another thread and my post got so verbose I figured I'd just go nuts and post it on its own.

Regards,
LH


18 posted on 12/16/2004 12:07:09 AM PST by Lancey Howard
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To: Southern Federalist; Republican Wildcat; Zack Nguyen

Ping.


19 posted on 12/16/2004 12:14:08 AM PST by Lancey Howard
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To: Don'tMessWithTexas; WashingtonSource; deport

Ping.


20 posted on 12/16/2004 12:16:35 AM PST by Lancey Howard
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To: Dont Mention the War

Thanks for your comments!

Regards,
LH


21 posted on 12/16/2004 12:17:35 AM PST by Lancey Howard
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To: Lancey Howard

I agree wholeheartedly with the objective, but I think we should be framing this as the "constitutional option" as opposed to the "nuclear option". There has always been a negative connotation associated with anything "nuclear" though I'd love to see that word associated with Fallujah and a few other terroristr hot spots. Ending the filibuster of federal judges and presidential nominees is simply an effort to uphold the powers of the President as set forth in the U.S. Constitution.


22 posted on 12/16/2004 1:25:16 AM PST by mull
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To: Lancey Howard
One area I am looking forward to seeing addressed by a new Supreme Court is the mythical "separation of church and state". It is long past due for this lie to be put to rest.

Over the past twenty-five years or so the sneaky, athiest scumbags of the ACLU and the Democrat Party have taken advantage of the ignorant rabble (with great help from their allies in the rapidly-fading "old media") by fabricating a "separation of church and state" (based on an old throwaway line from Ku Klux Klanner Hugo Black) and then trying to convince them that it's in the First Amendment somewhere. It is, of course, not in there at all.

Just for reference purposes, here's the First Amendment. It tells Congress what kind of laws it cannot make. That's all it does. There's nothing in here about "separation of church and state" (as anybody with at least the literacy and IQ of Jethro Bodine can see):

AMENDMENT I

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

23 posted on 12/16/2004 1:37:42 AM PST by Lancey Howard
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To: Lancey Howard

Excellent post, and so, so true. We can only hope for Sen. Frist to suddenly grow a pair along about early January.

I hold out little hope of that happening, though. Our paid reps are such weaklings, it makes me sick.


24 posted on 12/16/2004 1:49:25 AM PST by thelastvirgil (Idiot-proof ANYTHING, and someone will build a better idiot.)
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To: Lancey Howard
It's time to go to the mattresses! Enough of the weak, gutless, spineless routine!
25 posted on 12/16/2004 2:48:45 AM PST by AmericaUnited
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To: Lancey Howard
You need to bone up on your history. Justice Black is not the source of that phrase, nor was he the first to use it in a SCOTUS opinion.

PS - the 'nuclear option' doesn't refer to a simple change of Senate rules.

...by fabricating a "separation of church and state" (based on an old throwaway line from Ku Klux Klanner Hugo Black)...

26 posted on 12/16/2004 2:54:21 AM PST by Ready4Freddy (Carpe Sharpei !)
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To: Lancey Howard
Over 200 of W's nominations have been confirmed, ~10 have been blocked.

Playing fast & loose w/ the facts doesn't help your case.

Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!

27 posted on 12/16/2004 3:16:13 AM PST by Ready4Freddy (Carpe Sharpei !)
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To: Lancey Howard

I would like to see them force the dems into a for-real, sho-nuf filibuster that dragged on for weeks or months until victory is obtained and the enemy destroyed. They have only had sissy little pretend filibusters as a sop to conservatives up to now, The dems would loose the PR war over the filibusters as it dragged on and on, and you wouldn't have all this hand wringing over whether to "go nuclear." Once we kick their ass, if we decide we don't like winning, we can always go back to losing again.


28 posted on 12/16/2004 4:48:50 AM PST by Buckhead
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To: Lancey Howard; Do not dub me shapka broham; Alamo-Girl; onyx; ALOHA RONNIE; SpookBrat; ...
If Reid and gang continue to filibuster them, I'm game!

GO NUCLEAR! (Response to NRO Editorial)

Excerpt:

On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.

This opportunity must not be squandered.

As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.


Please let me know if you want ON or OFF my General Interest or Texas ping list!. . .don't be shy.


29 posted on 12/16/2004 6:11:06 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! )
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To: Do not dub me shapka broham
Thanks for the ping!

30 posted on 12/16/2004 6:12:59 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! )
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To: MeekOneGOP
No problem.
31 posted on 12/16/2004 6:13:35 AM PST by Do not dub me shapka broham (Why did it take me so long to come up with a new tag-line, huh?! What's up with that?)
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To: Buckhead
Sounds like a plan!

John Kerry:

I had one of those, once.

(Looks across table, at wife, Theresa Heinz. Hangs head in shame.)

32 posted on 12/16/2004 6:15:22 AM PST by Do not dub me shapka broham (Why did it take me so long to come up with a new tag-line, huh?! What's up with that?)
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To: Lancey Howard
My national column, which will go out the electronic door tomorrow, will deal with this subject. It was instigated by yesterday's thread on the NRO editorial, which also frosted your Christmas cookies.

I take the same position that you do, though with a slightly different approach. Bottom line: I agree that the nuclear option should be employed asap in January when the new Senators have been sworn in,

Cordially,

Congressman Billybob

Click for latest, "Should the Iraqi Election be Delayed?"

33 posted on 12/16/2004 6:16:31 AM PST by Congressman Billybob (FELICITY FAHRQUAR TAPED ON JEOPARDY -- YESTERDAY!)
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To: Lancey Howard
Pretty darn good essay, IMHO. I would fix this: "(enough votes for closure against a filibuster)" by changing "closure" to "cloture".
34 posted on 12/16/2004 6:16:51 AM PST by Bahbah
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To: Lancey Howard
The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".

No wonder Ann Coulter calls them "girlie men"

35 posted on 12/16/2004 6:19:52 AM PST by NeoCaveman (There is no dufu but DUFU and PJ Comix is its writer)
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To: Lancey Howard

I will give you my opinion. This is a first rate essay !
You didn't waste words, and proved your case with pure reason. This was as well written as any I have come across this year. BRAVO!!


36 posted on 12/16/2004 6:20:49 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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To: Lancey Howard

I read the NRO article and disagreed with it.

OTOH, your response is spot on.

You brought up some forethought that I hadn't considered yet. You've changed my mind about recess appointments - they are clearly not the answer.


37 posted on 12/16/2004 6:21:00 AM PST by kidd
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To: Lancey Howard

The ACLU is a scourge on the American landscape. Now, according to a segment on Fox News, George Soros has announced that he is pumping millions of dollars into the coffers of the ACLU. This is not welcome news!


38 posted on 12/16/2004 6:25:08 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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To: Lancey Howard
VERY GOOD commentary. Thanks for posting. :^D

39 posted on 12/16/2004 6:25:15 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! )
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To: MeekOneGOP

Wait and see. I don't think they have the er... fortitude to do this. They never even demanded a real filibuster. These were "Gentlemen's Filibusters." They were allowed to do other business and come back to the filibuster later. Either it's a filibuster or ya don't come back.


40 posted on 12/16/2004 6:25:39 AM PST by derheimwill (Love is a person, not an emotion.)
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To: dubyaismypresident

"No wonder Ann Coulter calls them "girlie men""

That is what they are!


41 posted on 12/16/2004 6:26:19 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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To: Paleo Conservative

No No .....SHAVE the Whales!


42 posted on 12/16/2004 6:27:58 AM PST by texson66 ("Tyranny is yielding to the lust of the governing." - Lord Moulton)
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To: international american
That is what they are!

Especially Rich Lowry. He's a bright kid, he just suffers from testosterone deficincy.

43 posted on 12/16/2004 6:28:40 AM PST by NeoCaveman (There is no dufu but DUFU and PJ Comix is its writer)
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To: Lancey Howard

Very well written! Also, you are right on the money.

5 Stars for you!

*****


44 posted on 12/16/2004 6:29:04 AM PST by KoRn
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To: international american; Lancey Howard
Sure enough! I sent it out to some family, friends, Freepers
and other folks via email. Included on the list was Rush Limbaugh
and Sean Hannity.

45 posted on 12/16/2004 6:29:51 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! )
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To: Lancey Howard

Full agreement here. Well done.


46 posted on 12/16/2004 6:30:31 AM PST by San Jacinto
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To: MeekOneGOP

Bump City!


47 posted on 12/16/2004 6:35:19 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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To: MeekOneGOP

Thanks for the ping.


48 posted on 12/16/2004 6:38:52 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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To: dubyaismypresident

We have too many "Trent Lotts" floating around. We need some real men to play this serious game.


49 posted on 12/16/2004 6:40:39 AM PST by international american (Generation Jones: "I need, I need someone to set a pick for me at the free-throw line of life)
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Comment #50 Removed by Moderator


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