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When Real Judicial Conservatives Attack [Dover ID opinion]
The UCSD Guardian ^ | 09 January 2005 | Hanna Camp

Posted on 01/09/2006 8:26:54 AM PST by PatrickHenry

If there’s anything to be learned from the intelligent design debate, it’s that branding “activist judges” is the hobby of bitter losers.

For those who care about the fight over evolution in biology classrooms, Christmas came five days early when the Kitzmiller v. Dover Area School District ruling was handed down. In his decision, Judge John E. Jones III ruled that not only is the theory of intelligent design religion poorly dressed in science language, teaching it in class is an outright violation of the First Amendment.

The ruling was a concise and devastating demonstration of how law, precedent and evidence can come together to drive complete nonsense out of the courtroom. But if the aftermath of the event proves anything, it proves that nine times out of 10, if someone accuses a judge of being an “activist,” it is because he disagrees with the ruling and wants to make it clear to like-minded followers that they only lost because the liberals are keeping them down. Gratuitous overuse has, in just a few short years, turned the phrase “judicial activism” from a description of an actual problem in the legal system into a catch-all keyword for any ruling that social conservatives dislike.

During the months between the initial suit and the final decision, a high-powered law firm from Chicago volunteered some of its best to represent the plaintiffs pro bono, defenders of evolution and intelligent design mobilized, and few people really cared other than court watchers, biology nerds and a suspicious number of creationist groups. The trial went well for the plaintiffs: Their witnesses and evidence were presented expertly and professionally, and it never hurts when at least two of the witnesses for the defense are caught perjuring themselves in their depositions. Advocates for teaching actual science in school science classes were fairly confident that Jones was going to rule in their favor.

When it came, the ruling was significant enough to earn a slightly wider audience than the aforementioned court watchers, biology nerds and creationists. What drew interest from newcomers was not the minutiae of the trial, but the scope of Jones’ ruling and the scorn for the Dover School Board’s actions that practically radiated off the pages. He ruled both that intelligent design was a religious idea, and that teaching it in a science class was an unconstitutional establishment of religion by the state. He didn’t stop there, however.

“It is ironic,” he wrote, “that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the intelligent design policy.”

Such harsh language might provoke some sympathy for intelligent design advocates, if they hadn’t immediately demonstrated how much they deserved it by responding — not with scientific arguments for intelligent design or legal precedent to contradict Jones’ ruling — but with ridiculous name-calling. The Discovery Institute, the leading center of ID advocacy, referred to Jones as “an activist judge with delusions of grandeur.” Bill O’Reilly also brought out the “A” word on his show. Richard Land, spokesman for the Southern Baptist Convention’s Ethics and Religious Liberty Commission and noted drama queen, declared him the poster child for “a half-century secularist reign of terror.” The American Family Association, having apparently read a different ruling than the rest of America, insisted that judges were so eager to keep God out of schools that they would throw out even scientific evidence for Him. Funny how so many creationist groups seemed to have missed the memo that intelligent design isn’t supposed to be about God at all.

It was depressingly predictable that the intelligent design crowd would saturate the Internet with cries of judicial activism regardless of the actual legal soundness of the ruling. In only a few years, intellectually lazy political leaders have morphed an honest problem in the judiciary that deserves serious debate into shorthand for social conservatism’s flavor of the week. The phrase has been spread around so much and applied to so many people that it only has meaning within the context of someone’s rant. It is the politico-speak equivalent of “dude.”

Only when one learns that Jones was appointed by George W. Bush and had conservative backers that included the likes of Tom Ridge and Rick Santorum can one appreciate how indiscriminately the term is thrown around. Jones is demonstrably a judicial conservative. In fact, he’s the kind of strict constructionist that social conservatives claim to want on the bench. Their mistake is in assuming that the law and their ideology must necessarily be the same thing.

In the end, no one could defend Jones better than he did himself. He saw the breathless accusations of judicial activism coming a mile away, and refuted them within the text of the ruling. In his conclusion he wrote:

“Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on intelligent design, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop, which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”

Jones knew his name would be dragged through the mud and issued the correct ruling anyway. One can only hope that the utter childishness of the intelligent design response will alienate even more sensible people, and that the phrase “judicial activism” will from now on be used only by those who know what they’re talking about. No bets on the latter.

TOPICS: Culture/Society; Philosophy
KEYWORDS: childishiders; creationisminadress; crevolist; dover; evolution; idioticsorelosers
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To: Ichneumon
Well, you know you're wasting your time if you think I'll ever believe we came from apes, ape-like creatures, or whatever you choose to call them. God created man and woman as fully-formed humans. What did the ape-like creature that no longer exists do with the human baby she gave birth to?
101 posted on 01/09/2006 10:10:20 AM PST by mlc9852
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To: Right Wing Professor

102 posted on 01/09/2006 10:12:00 AM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: Right Wing Professor
John Bingham clearly meant the 14th to apply the Bill of Rights to the states.

John Bingham...while he was the chief draftsman, said a lot of things about what the 14th Amendment was to do...many of which contradicted one another. But still he was one Congressman...and this amendment was passed and ratified by hundreds of Congressman and state legislators...and, because the language on which the incorporation advocates rely is, at best, less than direct...there should be some serious contemporaneous evidence that the states were intending to invite the federal courts in to review every state law under the BOR...but that evidence does not exist.

103 posted on 01/09/2006 10:13:30 AM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: Irontank
Incorporation is based, not on the P&I clause of the 14th Amendment, but rather on the due process clause. To be honest, reliance on the P&I clause might have been a more convincing argument for those who want to argue that the 14th Amendment incorporated the Bill of Rights...but its still not a good argument because (1) there is overwhelminbg evidence that the intent of the vast majority of those who ratfified the 14th Amendment was not to make the Bill of Rights applicable to the states (see my post at 71) and (2) "privileges and immunities" is a legal term of art.

Yes, but reliance on the the process clause is merely for historical reasons. Although the drafters clearly intended to privileges and immunities clause to apply to the states, the USSC, in a wonderful example of how 'judicial activism' didn't start in the 20th Century, decided that to do so would muss up the whole idea of the Constitution. When later courts when back to the drafters' actual intent, rather than simply overturn Slaughterhouse, they decided to use the due process clause instead.

You can deplore the 14th, if you like; but there's no doubt it was intended to greatly change the balance of federal and state powers, as a 'remedy' for the behavior of the southern states pre-civil war, and for Dred Scott.

104 posted on 01/09/2006 10:14:47 AM PST by Right Wing Professor (Round and round the argument goes....)
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To: mlc9852

Which of us, despite overwhelming evidence to the contrary, keeps stating she is not descended from apes?

105 posted on 01/09/2006 10:14:53 AM PST by Junior (Identical fecal matter, alternate diurnal period)
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To: Junior

If you want to believe you descended from apes, I have no problem with that.

106 posted on 01/09/2006 10:16:18 AM PST by mlc9852
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To: Chiapet
This one is surely a candidate for "This is your brain on Creationism."

Generally, yes. But I only want one-liners.

107 posted on 01/09/2006 10:16:34 AM PST by PatrickHenry (ID is to biology what "Brokeback Mountain" is to western movies.)
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To: Right Wing Professor; Irontank
Irontank ~ seems that none of the Congressmen who ratified the 14th Amendment knew that they thereby incorporated the Establishment Clause against the states.

Right Wing Professor ~ (John Bingham quote): "...What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?"

Oops. Looks like someone stands corrected.

108 posted on 01/09/2006 10:16:35 AM PST by Antonello (Oh my God, don't shoot the banana!)
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To: Ichneumon
your misinformation and misrepresentations still need to be corrected, lest any lurkers might make the mistake of presuming that you knew what you were talking about.

LOL!!! Good one!

109 posted on 01/09/2006 10:18:55 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: Irontank
.there should be some serious contemporaneous evidence that the states were intending to invite the federal courts in to review every state law under the BOR

Many of the states ratified the 14th over the barrel of a gun. Their 'intent' was to end military rule, which was made conditional on ratification.

110 posted on 01/09/2006 10:18:55 AM PST by Right Wing Professor (Round and round the argument goes....)
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To: PatrickHenry
Then how about #101?
111 posted on 01/09/2006 10:20:49 AM PST by Physicist
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Comment #112 Removed by Moderator

To: mlc9852; Ichneumon
What did the ape-like creature that no longer exists do with the human baby she gave birth to?

Give up Ichne. This one's stuck on it!

113 posted on 01/09/2006 10:21:19 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: mlc9852
Well, you know you're wasting your time if you think I'll ever believe we came from apes, ape-like creatures, or whatever you choose to call them.

How do you deal with the vast amount of evidence that we do, indeed, share common ancestry with them? Just cover your ears and sing, "la la la I can't hear you"? Is that intellectually honest? Wouldn't you prefer to learn how creation *actually* took place, by studying creation itself? I know I would.

What did the ape-like creature that no longer exists do with the human baby she gave birth to?

You have a very simplistic, cartoonish notion of biology. That's not an accurate picture of how speciation occurs.

Now might be a good time to repost a few of my prior posts explaining how new species *actually* arise in evolutionary biology (instead of in the childish creationist misrepresentation).

I know evolutionists believe that the changes occurred gradually. My point was at some point man was fully man. Unless every single creature gained that full manness at the same time, he was mating with something that would have been less (even if it only slightly less) human than he was.

Okay, let's see if I can explain it this way...

First, part of your confusion (in this, and in a lot of other topics in this thread) comes from your insistence on declaring that things must be 100% A or 100% B. The living world is not so black and white. The range of living things is a continuum more often than it's either/or. And not just across time, either -- several people have asked you to ponder the existence of "ring species", but I haven't seen you tackle it yet.

Furthermore, creationists often fail to appreciate the significance of the "nested hierarchies" of living things. It's as incorrect to say that a specific creature must be *either* a human *or* an ape as it is to say that a creature must be *either* a lion *or* a cat. Ponder that one for a moment, and then you'll be ready to understand the point of the essay You Are an Ape. Please read it.

Finally, even if you cling to the view that there's some "required" combination of genetic differences which, as soon as they're acquired, turn a "mere ape" into a "human", *bang*, that still doesn't make the evolution of one into the other a problem, or create any "breeding impossibilities". Here's how it works...

First, keep in mind that even if the "special" combination of genes which make primate DNA be considered human DNA has to all be present before *you'd* finally agree to label the resulting organism "finally human", a creature with only, say, 99% of those genes would still look pretty darned human and not so "classicly" apelike, since it would consist of 99% of the things that "separate" humans from apes. It'd only be missing one little thing out of the full set, so only one part of it would still be "apish" -- for example maybe it'd have more of a protruding brow than most people but all other human characterstics.

The other thing to keep in mind is that any one (or five, or fifty, or...) genetic differences is usually not enough to prevent interbreeding. The genetic differences just "mix and match" in members of the popuation, in the same way that both the blue-eyed gene and the brown-eyed gene swirl through human populations without any big deal.

So now that you've got some of the background, the way in which an "ape" population would evolve into a "human" population is straightforward. At some time a mutation X1 appears in the birth of a member of the population which offers some small advantage by virtue of being a small improvement (which in this example happens to bring the individual slightly closer to the advantages of being "humanlike"). The change is likely to be barely noticeable to those around him, perhaps he stands just slightly more upright, or has a slightly larger brain, or his hands are just a bit more talented, or he can voice a slightly wider range of sounds -- whatever. It's due to a small DNA change within him which just happens, by luck, to make a biochemical improvement to a particular protein in his body in a way that makes some function in his body perform just a touch better than was possible without the change. So, unlike many other mutations in the population, which made no difference, or the ones which caused damage to the functioning of the affected individual and got weeded out by natural selection, the individual who was lucky enough to receive X1 does a little better than the others in his species, and passes on his new X1 gene when he has children.

But wait, you ask, he's a "mutant", wouldn't that prevent him from mating with all the rest of the population since they don't have X1? No, it wouldn't, any more than your brown-eyed gene would prevent you from having children with a blue-eyed man. The "owner" of X1 mates with a woman who has the original form of the gene, call it Q1. Due to ordinary genetics, each of their children will have 2 X1's, or 2 Q1's, or 1 X1 and 1 Q1, by random chance. But because X1 gives a survival boost, more of the children who drew X1's from the genetic deck will have their own children than those who missed out. And so on and so on across generations, causing X1 to become more and more prevalent in the population than the competing "obsolete" Q1. Statistically, eventually X1 will "fix" in the population by virtue of being the only variety of that gene existing in the population, the Q1's having gone extinct when the last few individuals who still had a Q1 either didn't manage to have children, or had children but their children drew X1's from their parents genetic "deck".

So now the whole population is made of individuals with X1 genes and no Q1 genes.

Repeat this process for X2, another gene change which is a step along the road from "apeness" to "humanness". Then for X3, and X4, and... Finally, at some point the population will have genes X1 through X(N-1) out of the N genes which you believe are required to make them "fully human". They already look and behave pretty much entirely human, since they have almost every genetic feature which makes a species human, but you're still unwilling to declare them human because they're missing X(N), the last gene of the set. Okay, fine -- repeat the process I described above about X1 to gene mutation X(N). The first individual which gets that mutation is now "fully human" in your book. Hooray for him. However, he really isn't noticeably different from the other members of his species, since he only varies from them by a single genetic difference. So other than being the guy (or girl) who loses that last tiny remnant of "apeness" which is barely even noticeable in the population (maybe jaws on average protrude just 3% more than his or his offspring will), he has no problem having children with the mate of his choice, because they only differ by a single mutation. And eventually his X(N) gene spreads through the population over the next fifty generations until the old-style Q(N) gene gets replaced by it, and all of his kind are now 100% human instead of 99.9% human as they had been before the X(N) mutation.

And note that all the above is *standard* population genetics, *extremely* well established as ordinary processes which occur all the time in nature. It's not just an "imagine if" story.

Also note that I've simplified it somewhat by implying that, for example, mutation X46 wouldn't happen until mutation X45 had finished "fixing" in the population. Instead, it's just as easy for it to occur and be spreading into the population *while* X45 is in the process of doing so as well, for example. But this just makes the process even *more* likely, not less. There are always multiple sets of alleles floating around in populations without ill effect -- if there weren't we'd all be identical and homozygous clones.

Frankly, though, I don't think we're fully human *yet* -- if nothing else, we really need to get rid of the ape genes we still carry that cause these damned wisdom teeth which fit nicely and were useful in the longer ape jaw but just get jammed up and cause health problems in the rear of our smaller more human jaw. It looks as if we're still waiting for X(N) and haven't quite gotten the "full human" transformation finished just yet...


Oh my, where to start... At the top, I suppose. You start with, "The definition of a species is that it can't reproduce with anything outside the species." No, this is incorrect. While it's true that if two groups *can't* interbreed, they are necessarily separate species, the converse is not true. Groups that can interbreed to some degree can still be separate species. Consider lions and tigers, for example. A better definition is that species are groups that *don't* interbreed to any large degree. A more technical way to put it is that they are independent breeding populations. But there are exceptions and gray areas -- this is because nature itself does not recognize the "species" concept. It's a manmade label applied for convenience and utility to certain groups. If Darwin was right, there should not be clear-cut distinctions between groups as they are in the process of diverging evolutionarily. And indeed, this is exactly what we find, which is why there's no "one definition fits all situations" meaning for "species". Groups like "ring species" throw a monkeywrench into any "nice and neat" definition of "species" that humans might care to try to formulate, for example. Nature is nowhere near that tidy.

But even leaving that aside, your idea about how a population can split into two distinct species (even by your definition) is a wildly incorrect misconception about how it actually works.

You have two major misconceptions and wrapped them around each other.

The first is that species formation involves a sudden "freak" with a massive mutation that occurs in a single individual in one generation. Nope, wrong. This is widely snickered at in the biological community as the "hopeful monster" scenario. But it's not how evolution proceeds.

Your second misconception is that having a different number of chromosomes would prevent successful mating. It doesn't. Or at least it needn't, depending on the nature of the difference, and there are many known cases where it doesn't. For example, the Przewalski horse, which has 33 chromosomes, and the domestic horse, with 32 chromosomes (due to a fusion), are able to mate and produce fertile offspring.

A third misconception, a combination of your first two, is that speciation requires anything like an "extra" chromosome. It doesn't.

What actually happens (or at least in most cases -- as in my earlier discussion of the definition of "species", nature is flexible and abounds with variations, and refuses to follow any one "script" in every single case) is that accumulated small changes in a population diverge if from a parent population.

Note for example that there is no one "big mutation" separating humans from our nearest extant cousins, the chimps. There are *thousands* of genetic differences, as one would expect after five million years of divergent evolution between the two groups. Heck, there are hundreds of genetic differences between *human* groups, and we share common ancestors a lot more recently.

[Sidebar: However, the nature of any one specific difference considered by itself is minor and of the type one would expect to be produced by evolution. There are no portions of the human -- or chimp -- genome which are so different that they seem "completely rewritten", or "written fresh on the drawing table" when compared with the other group. Both the human genome and the chimp genome have been completely sequenced and are available on several online databases. I challenge any creationist to compare any portions of the two and look for any difference between them which are "unique", or are major minor variations from the other to be of the sort -- in both amount and kind -- which one would not statistically expect to result merely from five million years of evolutionary "drift". Good luck! None have been found so far by anyone, but hey, maybe you could be the first.]

One genetic mutation does not a new species make (again, usually). Often *hundreds* are not enough, as proven by the many genetic differences occurring even within human populations.

Instead, it takes *many*, *many* accumulated mutational differences to separate one population from another to a degree large enough to warrant describing the two as different species, and/or to interfere significantly with their ability/willingness to reliably interbreed.

So the answer to your question is simple: Speciation does not occur in a single generation by one mother suddently giving birth, *poof*, to an offspring so mutated that it's a "new species" from its mother, and unable to interbreed with the rest of its (sort of) kind. Instead, subpopulations of a larger population (often separated by distance, geography, or other barriers) each accumulate genetic differences apart from each other as new mutations accumulate separately in each subpopulation, each mutationoccurring originally in a single individual then spreading through the subpopulation in succeeding generations (while detrimental mutations get constantly weeded out by natural select, and beneficial mutations get "amplifed" by it), until eventually the two populations are different enough from each other in their overall genetic makeup so that morphologically they are obviously different "subtypes" of creatures even to the unaided eye, and no longer reliably interbreed with each other.

And yes, there are countless field studies and genetic studies and all sorts of other studies which have established the reality of this, it's not just a hypothetical scenario.

I'm no expert (this will become obvious momentarily) so I've always been puzzled about one thing. At a certain point a mother gives birth to a child with a different genetic code, right? Fine, but let's say the child is a female. My question is; where does the male come from with the same genetic code to propagate this new species? Or is it a horse + donkey = mule type of thing where the species are similar enough to carry on. My ignorance on this is great so I would appreciate any answers you could provide?

You're asking the wrong person, allow me...

The answer is that it's not a matter of having "same" or "different" genetic code. Every human being has a different, unique genetic code (that's why DNA matching works in criminal cases). But obviously we can still interbreed.

No "exact match" of DNA is required to interbreed, just "close enough".

And the short answer to your question (there are all sorts of fascinating complicating details) is that when a population (usually, an isolated *subpopulation*) of species X is evolving towards becoming species Y, the amount of genetic change per generation is small enough that each member of the population can continue to interbreed with the rest of the population, even if it has a mutation that hasn't yet spread to the rest of the population.

Over several generations its novel mutation does spread through the population and becomes ubiquitous in the population, and thus when the next novel mutation pops up in the population, everyone's already on the same "page" with respect to the last one, and the new mutation is no more hindrance to interbreeding than the last one originally was.

Rinse, repeat, etc.

Eventually number of novel mutations in the population becomes so large that even though the population itself can still interbreed (because they all "evolved together" into species Y through genetic exchange), the population is "enough different" DNA-wise that it will no longer be able to interbreed with members of the *original* population of species X it split off from (which itself may be relatively unchanged, or evolved off in a different direction itself).

This is how one species splits into two (or more), each "daughter" species unable to mate with its "sister" species, yet always able to breed with itself at every stage along the way.

Look back a few posts for a discussion of "ring species", whereby each subgroup along a "ring" around a mountain or whatever is still able to interbreed with its "neighbor" subgroups on the ring, but when the far "arms" of the ring meet each arm has changed enough genetically that they are unable to mate at the point where they "meet up" on the other side of the geographic obstacle. This works in a way similar to my description above -- each subgroup is "not too different" from its neighbors to interbreed, but over the whole extent of the line/ring, the far "ends" have diverged enough from each other to be unable to mate. Same thing, basically.

114 posted on 01/09/2006 10:22:57 AM PST by Ichneumon
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To: mlc9852

"Can you prove humans descended from apes?"

Can you prove God is the Creator?

115 posted on 01/09/2006 10:23:45 AM PST by Blzbba (Sub sole nihil novi est)
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To: Physicist; PatrickHenry

#101 is a classic!

116 posted on 01/09/2006 10:25:53 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: Physicist
Then how about #101?

A definite winner. I'll include it very soon. For those who can't wait ...

NEW post 101 by mlc9852 on 09 Jan 2006. What did the ape-like creature that no longer exists do with the human baby she gave birth to?

117 posted on 01/09/2006 10:26:35 AM PST by PatrickHenry (ID is to biology what "Brokeback Mountain" is to western movies.)
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To: All
118 posted on 01/09/2006 10:34:57 AM PST by PatrickHenry (ID is to biology what "Brokeback Mountain" is to western movies.)
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To: Ichneumon

Ring species are still the same species, right? Some kind of lizard turns into another kind of lizard.

Can apes and humans mate? I know - lots of jokes there - but can they? No one has a problem with adaptation - it is often quite obvious. But I have yet to see proof that humans used to be apes.

119 posted on 01/09/2006 10:37:40 AM PST by mlc9852
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To: Blzbba

Yes. The Bible says He is.

120 posted on 01/09/2006 10:38:32 AM PST by mlc9852
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