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Do we know the right questions to ask Kagan?

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There are at least two reasons that it's hard to say whether Elena Kagan is a "good" or "bad" pick for the Supreme Court. First, her thin written record means we don't have enough evidence to answer our questions. Second, and this isn't Kagan's fault, we're not all that clear on what exactly our questions are.

A Supreme Court justice is more like a president than a policy. Kagan will be influential on many issue areas rather than just on one. In general, we've simplified the analysis by using a couple of hot-button cultural issues as a way to signal whether a candidate is liberal or conservative, which in turn allows people who are liberal or conservative to feel comfortable or upset. Abortion is obviously a mainstay here, and affirmative action comes up a lot, too. But civil liberties and executive power are increasingly important, and economic and business issues matter, and so do labor issues, and don't forget questions of health-care law and campaign-finance reform. We don't have a year to ask these questions, and unlike when it comes to presidents, Supreme Court nominees don't have to tell us their answers.

Then there's the issue of temperament and negotiation. My sense is that news of Anthony Kennedy's malleability has been greatly overstated, but the ability to count to five is important, and John Paul Stevens' retirement deprived the court of its best liberal counter.

If Kagan had written a really long article detailing her views on Roe v. Wade and affirmative action, we might not be having this conversation about whether her views are knowable, but most of her views still wouldn't be known. The politics of Supreme Court nominations are bedeviled by, on the one hand, our uncertainty about the right questions to ask, and on the other hand, the increasing sophistication nominees and nominators demonstrate in dodging the questions we do ask.

Photo credit: BL Murch/CC.

By Ezra Klein  |  May 10, 2010; 10:24 AM ET
Categories:  Legal  
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Comments

Maybe the USSC nomination dance works pretty well. We seem able to get qualified people confirmed, and we have a general sense of their jurisprudence. To ask for more may be to invite trouble.

Posted by: jduptonma | May 10, 2010 10:29 AM | Report abuse

She is clearly very, very smart. She is as qualified as the previous nominee with no judicial experience, William Rehnquist, and as qualified as solicitors who became Justices, such as Marshall, for whom she clerked. Her background suggests she's got a commitment to social justice, but her tenure at Harvard and especially as Dean indicate she's got polish and can build consensus among big egos. Plus, she's got so many conservative supporters she should be relatively easily confirmed, and her opponents are going to seem shrill.

Obama seems to have nominated her because he likes her style and he needed not to get bogged down with this appointment. If and when Justice Ginsburg retires he can put another woman on the court as her logical successor!

Supreme Court nominees famously surprise the Presidents who nominate them. Since the Court got so ideological and the background checks got so detailed that hasn't happened as it did with Hugo Black, Earl Warren and William Brennan. I think she'll do very well and her tenure will be interesting.

Posted by: Mimikatz | May 10, 2010 10:48 AM | Report abuse

Ask her about her hiring decisions at Harvard Law, which skewed heavily white and male (and conservative).

Posted by: RalphKramden | May 10, 2010 10:55 AM | Report abuse

- How would you have voted on Bush V Gore?

- How would you have voted on Citizen's United?

- How would you have voted on net neutrality?

- Is the mandate constitutional?

Posted by: Lomillialor | May 10, 2010 11:04 AM | Report abuse

Kagan has demanded that we ask more of judges. I wonder if she is prepared to comply with her own recommendation?

http://www.jstor.org/stable/1600153?seq=1

Posted by: staticvars | May 10, 2010 11:42 AM | Report abuse

The first question to ask:
"Should we insist that you reveal what kind of Justice you would make, by disclosing your views on important legal issues?"

Then ask all of Lomillialor's questions.

Posted by: RalphKramden | May 10, 2010 11:43 AM | Report abuse

Lomillialor: "How would you have voted on net neutrality?

"Is the mandate constitutional?"

Judicial nominees never answer questions on specific issues that might come up before them in actual cases. And there's a decent justification for this avoidance: they're supposed to be neutral decisionmakers making judgments based on the law as applied to the facts and arguments in particular circumstances. Each case is different, and to make a blanket statement on an issue would be prejudging the case and unfair to the parties.

My understanding is that general questions about judicial philosophy are OK; questions about specific pending issues are not. (Well, the questions are OK, but we shouldn't expect an answer.)

Posted by: dasimon | May 10, 2010 11:53 AM | Report abuse

Lomillialor, under the confirmation system we have now, it would be both inappropriate and crazy for her to answer those questions. Well, the way they're phrased, it'd probably be inappropriate for her to answer those questions no matter what confirmation system we have because they're likely to be specific issues presented to her.

My view is this, if a nominee lives or dies by whether or not they let slip an indication of some marginally controversial opinion, then nominees are going to be picked for their lack of record and are going to get really good at not answering questions. We'll be treated to endless variations on Roberts' "umpire" metaphor, all the while knowing it's total crap.

All reasonably educated and aware humans have opinions on the major issues of the day. The important issue as I see is isn't whether the nominee has manage to survive in this world for 40+ years without ever thinking about Roe v. Wade, it's whether they're a fair person with enough integrity to hear the facts of a case and not allow their natural biases to keep them from making a decision that comports to the law. I know, maybe that's a distinction without a difference, and we'll just end up with nominees talking about their extremely vague and bland opinions.

Still, I'ld like to get to a place where we can act like adults during these nominations and admit that every nominee has some opinions about these issues, but those opinions shouldn't necessarily bar their appointment. My personal favorite fix is to set term limits for a Supreme court seat, but I know that's a pipe dream.

Posted by: MosBen | May 10, 2010 12:05 PM | Report abuse

"My sense is that news of Anthony Kennedy's malleability has been greatly overstated"

One data point against this proposition: the rumor told to me by a law school prof (who's a big muckity-muck at the ACLU, so he oughta know) was that Kennedy was originally going to vote against abortion rights in Casey, but then was persuaded to vote the other way by his clerk. In case you're wondering, the clerk's argument was based on the premise that voting against abortion rights would encourage yet more populist revolt against the Supreme Court (like you saw in the run up to Casey) that would end up destabalizing a lot more Supreme Court precedent.

Posted by: blah1 | May 10, 2010 12:07 PM | Report abuse

Why worry about these questions at all? Answers to nominee's questions are like campaign promises, and we should give them about the same weight: not much.

We should evaluate candidates based on their records instead. Kagan's thin record is a good reason for Senators to vote against her confirmation.

Posted by: Matt10019 | May 10, 2010 12:14 PM | Report abuse

There aren't any right questions to ask a Supreme Court nominee. Based on her background it is clear that she will be as liberal as Stevens. Everything that will be said now about this nominee will be complete and utter chaff that will be totally forgotten once she is confirmed.

Posted by: publius1 | May 10, 2010 12:26 PM | Report abuse

Read 1996. “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” University of Chicago Law Review. PDF.

If you read pp. 464-472 closely, especially footnote 163 at p. 465, you will think she is the sixth vote in favor of upholding "Citizens United".

So the question that is legit to ask is to quote her, then: You wrote in 1996:

"The Court tried to distinguish Austin from Buckley, principally on the ground that corporate wealth derives from privileges bestowed on corporations by the government. Id. But this argument fails, because individual wealth also derives from governmental action."

Do you still maintain that the state created legal fiction of a for-profit corporation, designed to attract investors by shielding them from personal liability for entity actions, is just like an individual, because "individual wealth also derives from governmental action?"

Do you see a state law directly designed to ease wealth accumulation for entities as equivalent of the public education system? Because, if you do not, you must explain in some other rational way how "individual wealth derives from governmental action".

These questions can be answered without reference to case law, but if they are answered honestly, we will know her true views on "Citizens United".

Posted by: mark_in_austin | May 10, 2010 12:33 PM | Report abuse

Matt10019, Kagan's record isn't any more "thin" than previous nominees. She's held as many prestigious jobs and gotten the same prestigious education. She's clearly very smart and qualified in legal issues. What she doesn't have is a large written record of legal opinions on cases. This isn't a horrible thing. Many of our justices have not been judges before being nominated to the Supreme Court. It's only our recent fascination with trying to pin them down on how they'd rule on the specific touchpoint issues of our day that has led to only nominating judges.

That her history only gives vague notions of her positions on hot button legal issues is just the natural conclusion of our current practice to try and derail a nomination because the nominee said something some time that we don't like.

Posted by: MosBen | May 10, 2010 12:33 PM | Report abuse

Whether or not Congress asks her my earlier listed questions, Obama should already know the answers to them.

Posted by: Lomillialor | May 10, 2010 12:38 PM | Report abuse

"Whether or not Congress asks her my earlier listed questions, Obama should already know the answers to them."

Ah, that is the issue: should Obama be the only one who knows the answers and should the rest of us just trust him? Critics of the pick such as Glen Greenwald at Salon argue that liberals shouldn't settle for someone with a blank judicial slate while taking the words of others on what kind of a judge she would be, especially when there are other nominees with established judicial records. http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan/index.html

staticvars: "Kagan has demanded that we ask more of judges. I wonder if she is prepared to comply with her own recommendation?"

Greenwald: "Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that's especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything." http://www.salon.com/news/opinion/glenn_greenwald/2010/05/10/kagan/index.html

The confirmation process has become a ritualized dance that rarely if ever produces anything of substance. Perhaps it's because the nomination of judges itself is an odd conflict: an inherently political appointment to what is supposed to be an apolitical branch.

Posted by: dasimon | May 10, 2010 1:12 PM | Report abuse

MosBen: Fair point about her prestigious jobs. However:

Over 14 years as a professor at University of Chicago and Harvard, she wrote at most five significant papers. This is thin, not just compared with judges, but compared with other law school professors and law school deans.

Kagan's thin paper trail is good reason for Senators to vote against her confimration.

Posted by: Matt10019 | May 10, 2010 1:16 PM | Report abuse

MosBen: "My personal favorite fix is to set term limits for a Supreme court seat, but I know that's a pipe dream."

Lifetime tenure may help ensure judicial independence, but it may also contribute to the almost toxic nature of the confirmation process. Linda Greenhouse argues that limited terms might help each appointment from becoming such a bruising (and ultimately unproductive) battle because each appointment would then carry less weight. She also notes that other countries don't seem to have the same judicial nomination battles that we do. http://query.nytimes.com/gst/fullpage.html?res=9E0CE4D81430F937A15757C0A9669D8B63

Of course, term limits for federal judges would require a constitutional amendment, which makes it a tough haul though not necessarily an impossible one.

Posted by: dasimon | May 10, 2010 1:27 PM | Report abuse

I've rethought my questions. I now think the following is the most important question that can be asked of her:

Is it constitutional for the EPA to regulate carbon emissions?

In the absence of bipartisan support for a climate change bill, regulating carbon may become the most important issue of our generation.

Posted by: Lomillialor | May 10, 2010 1:42 PM | Report abuse

Questions are not good. You need to order a discussion to get results, then you can question the response.

"The critical inquiry as to any individual similarly concerns the votes she would cast and the perspective she would add (or augment), and the direction in which she would move the institution" -Kagan

I would suggest this template:

Discuss the key precedents and judicial issues that surround [pet thorny issue] , the perspective you add or augment, and the direction in which you would move the institution on these issues.

Posted by: staticvars | May 10, 2010 2:02 PM | Report abuse

She is clearly very, very smart. She is as qualified as the previous nominee with no judicial experience, William Rehnquist, and as qualified as solicitors who became Justices, such as Marshall, for whom she clerked.
*********

rehnquist and marshall had years in practice, kagan had never stepped in a court room before becoming solicitor general and then seemed to fumble the distinction between expenditures and contributions in her citizens united oral argument. also, she worked in the white house whereas Rehnquist had years of experience at DOJ.

the real question is: why does she have so little scholarship? what exactly what she doing in her time at U Chicago and Harvard?

her main qualification seems to being a friend of obama.

Posted by: dummypants | May 10, 2010 2:37 PM | Report abuse

In the absence of bipartisan support for a climate change bill, regulating carbon may become the most important issue of our generation.
*********

cap and t-t-t-ax

Posted by: dummypants | May 10, 2010 2:38 PM | Report abuse

dasimon, I'm calling dibs on the term limits argument. Others may have made it better than I, but I've been saying it a long time! But yeah, a Constitutional Amendment is basically impossible, even if it would make confirmations easier.

Matt10019, I think it's fair to point out what papers she's written, etc., but I'm not sure it's enough to vote against her, at least in my conception of the Senate's duty of advice and consent. There's simply no list of necessary qualifications for the Supreme Court, and historically justices have come from all kinds of different backgrounds. Nor is there a requirment that nominees be the absolute best of the best of the best. Were that the case, we'd have a lot more nominees in their 60s and 70s, because no matter how smart a 50 year old nominee is they're not going to have the history that an older nominee would have.

"Advice and consent" is also a very nebulous phrase, but for most of our history it didn't mean tons of scrutiny. If the worry about her record, or lack of record, is that she doesn't have the intellect to be on the court, that seems pretty easy to figure out with hearings. She's clearly smart, and it seems easy to show legal knowledge in the hearings.

If "long background of legal writings" is the primary factor, people should be screaming "Richard Posner" for every nomination until he dies. But we all know that it's more than that. It is, to an extent, a political nomination, so age matters and political leaning matters. If it didn't, conservatives wouldn't be so angry about Souter's nomination.

My main problem with this whole process is that it's so clearly political but we've slathered a veneer on the process to disguise it as anything but. Justices are political actors and have political views. The sooner we get over that reality, the better.

Posted by: MosBen | May 10, 2010 2:40 PM | Report abuse

Lomillialor: "Is it constitutional for the EPA to regulate carbon emissions?"

I don't think that's a constitutional question as much as a statutory one. If Congress gives the EPA the authority by statute, then the EPA has the authority. If there's no statutory authorization, then the EPA can't regulate. If the question is whether present statutory language gives the EPA the authority to regulate CO2, the Supreme Court has already decided that the Clean Air Act requires the EPA to determine if CO2 is a pollutant (and which presumably can be regulated if the answer is yes). http://en.wikipedia.org/wiki/Massachusetts_v._Environmental_Protection_Agency

Posted by: dasimon | May 10, 2010 2:49 PM | Report abuse

Kagan's lack of experience as a judge is due in part to the Senate Republicans who blocked her nomination to the Appeals Court by refusing to schedule a vote on it.

Posted by: thrh | May 10, 2010 5:38 PM | Report abuse

MosBen: Fair point about her prestigious jobs. However:

Over 14 years as a professor at University of Chicago and Harvard, she wrote at most five significant papers. This is thin, not just compared with judges, but compared with other law school professors and law school deans.

Kagan's thin paper trail is good reason for Senators to vote against her confimration.

Posted by: Matt10019

---------------------------

Yes, Kagan does only have about half a dozen articles to her name, and no books, all of which combined give us a few of her thoughts on only two broad topics: free speech and presidential administration. Beyond that, there is an exceedingly thin paper trail for this nominee.

In some respects, the White House might view this as a good thing. Kagan can defer to answer any specific questions that might be prejudicial to a case that she may hear, which leaves senators to quiz her about half a dozen articles and her work in government and as an academic, and that's about it. However, if Kagan doesn't give people a little more than this, many senators may not be convinced to vote for her.

What surprises me is that Kagan was able to get tenure so easily at U Chicago. Four or five decent articles are normally not enough to earn tenure at a prestigious research institution. Especially given that her most prestigious and influential article, the one on presidential administration, was not published until 2001, and that she has yet to publish a book, I suspect that Kagan would have gotten bounced in a tenure review at many top universities. Evidently, she is good in the classroom, but that doesn't cut it for tenure in a lot of universities.

After that, Kagan bolted academia for politics, and angled for an appointment somewhere that never came until she was thrown a rope by Larry Summers, who made her dean of Harvard Law, halfway a step back into academia, but much more a political and administrative role. Since then, she has balanced conservatives and liberals very well in her role as dean, and her track record as solicitor is still very short. Kagan gives people very little to sink into in terms of her personal views, which is going to make the next few months leading up to a confirmation vote very interesting. We've not had such a blank slate since perhaps Souter, and even he had a judicial record to examine.

Posted by: blert | May 10, 2010 5:51 PM | Report abuse

This is a perfect pick. She will die from a diabetic coma within 3 years and the Republican who beats Obama can replace her.

Posted by: BO__Stinks | May 10, 2010 5:53 PM | Report abuse

- How would you have voted on Bush V Gore?

- How would you have voted on Citizen's United?

- How would you have voted on net neutrality?

- Is the mandate constitutional?

Posted by: Lomillialor

---------------------

I think that the second of these questions would be particularly interesting given that Kagan was the lawyer arguing the government's case in front of the Supreme Court. I would assume that her view coincides with what she argued on the government's behalf in that case, but her arguments also ended up losing. I wonder if her position has developed at all on the case since then, or if her case on behalf of the government was somewhat divorced from her own views to begin with (unlikely, but possible).

Posted by: blert | May 10, 2010 5:58 PM | Report abuse

Why did she let con artists who pledgerize and lie off for their ruse ?
(Barry is hoping when his lie comes up, she let's him off)

Look at others this one is not for the USA highest Court postition. ....next.

Posted by: dottydo | May 10, 2010 6:09 PM | Report abuse

When people start complaining that she has no judicial experience, keep in mind that before John Roberts, William Renquist was the Right's favorite chief justice,,, and he had no judicial experience yet became a great Supreme Court Justice and the Chief,,

so take that, all who claim she is insufficent due to lack of being on the bench,,,,

now bring on the next hypocrit

AND,,,, Look at her resume,,, she is very qualified to be a Supreme Court justice,

to those who say no, I ask this, what should their educational and professional pedigree look like if hers is not sufficient,,,

of course, no one they could suggest would look any better under that criteria, thus the hunt for the smoking gun of what her legal opinions might be and if differenct than mine,, VOTE NO

She has the complete mental capacity, education and legal training to rise to the top court in the land,,,

Beyond that,, pray that she keeps an open mind, a keen intellect and a devotion to understanding and applying the US Constitution,,

If she can do that, she will be all we could have asked for,,,,,,,, and she might become a great justice,,,

only time will tell

give her and life a break,,, get real

Posted by: EastCoastnLA | May 10, 2010 6:11 PM | Report abuse

> Judicial nominees never answer questions
> on specific issues that might come up
> before them in actual cases.

Actually, I think that George F. Will made that "rule" up during the O'Conner confirmation. There is nothing in the Constitution, the law, or simple human morality that prevents a Senator from asking of a candidate whatever questions he/she thinks fit, and holding up the nomination until he receives reasonable (non-spun) answers. And after the fiasco of Roberts' dissimulation during his testimony (I would call it perjury, personally) it is incumbent on the Senate not to let another candidate slip by with non-answer deflections.

OTOH, one can also get around a nonsensical "rule" prohibiting direct questions by asking for explanations of concepts ("Ms. Kagen, I'm just a simple bug extermination who doesn't understand these complex legal issues. Could you please explain to me in simple terms the concept of the unitary executive?") and then carry on with hard-hitting follow-ups to those answers.

sPh

Posted by: sphealey | May 10, 2010 7:21 PM | Report abuse

"so take that, all who claim she is insufficent due to lack of being on the bench"

I don't think people are arguing that she's not qualified because she hasn't been a judge. Frankfurter had no experience on the bench and he did fine.

The argument is instead that those who would want to see the status quo on the Court at least maintained shouldn't have to rely on the words of others who know a nominee personally in order to assess her. There were other choices available with established judicial records who could have assuaged various concerns, while Kagan's judicial philosophy is a blank slate. And Obama's ability to get someone with an established judicial record through the Senate will be better now than after the next election.

But barring some truly phenomenal development, she's the pick and she's the one who the Senate will vote on. While some may have wanted someone else, it's hard for me to see her not being confirmed since she has the credentials.

Posted by: dasimon | May 10, 2010 7:30 PM | Report abuse

Gee - Ezra. Nice job of burning electrons without saying anything!

Posted by: fr3dmars | May 10, 2010 8:04 PM | Report abuse


Well, I'm guessing that at least she is not Catholic. We now have SIX Catholics on the SC, right?

Posted by: dotellen | May 10, 2010 10:52 PM | Report abuse

Any Republican complaining about a "thin record" or "lack of judicial experience" only has their GOP compatriots to blame. Had they not blocked an "up or down" vote on her nomination to the DC Circuit in 1999, they'd have 11 years of opinions from the bench to pin her down with. Their choice...

Posted by: piedpiper247 | May 10, 2010 10:56 PM | Report abuse


she's clearly very smart as well as engaging.

for the life of me i can't understand how she got through all her years at the highest level of academia without having published a significant number of articles on a variety of weighty legal topics. in her "publish or perish" melieu, how did she get away with that?

and then there's her lack of judicial experience. i really like this lady, but there's just no "there" there.

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Posted by: itkonlyyou52 | May 10, 2010 11:27 PM | Report abuse

sphealey: "There is nothing in the Constitution, the law, or simple human morality that prevents a Senator from asking of a candidate whatever questions he/she thinks fit, and holding up the nomination until he receives reasonable (non-spun) answers."

True. But there is a good reason for judges not to say how they would rule on on specific issues that might come up before them in actual cases, and I stated it above: it would mean literally pre-judging a case. Judges are supposed to approach each case with an open mind, and decisions can turn on details. It would be improper and unfair to the parties to a case for a judge to have made up her mind in advance in the absence of actual facts actually argued by actual litigants.

So sure, Senators can ask such questions if they want. But there are justifiable reasons why they shouldn't expect answers.

Posted by: dasimon | May 11, 2010 1:02 AM | Report abuse

MosBen, I agree with you that Justices are political actors and have political views. When a nominee lacks a paper trail, Senators can not judge their politics well enough to confirm them.

As I see "advice and consent", the Senate does not have to consent. I object to the obstructionism of delayed votes, and I would object to voting down three nominees for one position. But rejecting one candidate with a quick vote is OK by me.

I think it within the Senate's right to say "we do not consent to place Elena Kagan on the Supreme Court".

Posted by: Matt10019 | May 11, 2010 1:16 AM | Report abuse

Forget the political confirmation process
the american people, at a time of great crisis in this country and in the world, are being fed a supreme court justice who has no discernable experience ( 5 articles notwithstanding) in constituional law issues or any exprience outside of teaching or school administration.

The interests of the american people and the judicial function of the country are completely marginalized..

The realization is spreading that this is not the country we think it is.


hmmm

Posted by: JohnAdams1 | May 11, 2010 3:33 AM | Report abuse

This will be remembered as Obama's "Harriet Myers" pick. 15 months of thought on Constitutional issues would make Kagan by far the lightest weight on the court and quite likely to end up as confused in judicial views as A. Kennedy.
Clearly not a nominee who has "earned" a court seat.

Posted by: UncomfortableTruths | May 11, 2010 3:53 AM | Report abuse

Bush has shown us the new norm in SCOTUS appointees: say as little as possible, hide your political bias, get put on the court, then go wild with your politics. What is sauce for the goose is sauce for the gander, and, I bet Kagan will intellectually kick A against Roberts and Alito, and make it real hard for them to rule in an anti-gay, anti-woman way. Which they will if allowed to.

Posted by: kamdog | May 11, 2010 9:15 AM | Report abuse

Like most others discussing Supreme Court nominations, Ezra gets caught up in the social issues to the exclusion of what may be the most fundamental of all, the Justices's attitude to the power of money in the political process. Recent conservative nominees have shown little practical interest in repealing Roe v. Wade or in validating the Cheney-Bush attitude towards Constitutional rights - support for the encroachment on rights has come from Congress. Kagan's appointment is not likely to change things on social issues. What the conservative justices have consistently shown, and what was undoubtedly a major criterion in their selection, is a friendliness toward big-money and corporate interests - one dollar, one vote. What is Kagan's attitude on this question?

Posted by: dowty | May 11, 2010 9:45 AM | Report abuse

UncomfortableTruths: "15 months of thought on Constitutional issues would make Kagan by far the lightest weight on the court"

How do you know she's spent 15 months thinking about constitutional issues? How do you know she'd be "by far" the "lightest weight"? Especially when there are legal heavyweights who do know her well who have come to the opposite conclusion?

Sometimes we have to be aware that other people may know more than we do--not that we necessarily have to agree with them.

Posted by: dasimon | May 11, 2010 10:51 AM | Report abuse

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