Law & the Courts

Operation Legend Update

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Attorney General William Barr participates in a roundtable discussion about human trafficking in Atlanta, Ga., September 21, 2020. (Elijah Nouvelage/Reuters)

Two months ago, President Trump and Attorney General Barr announced a surge in federal law-enforcement agents to cities that were plagued by skyrocketing violent crime. The ramp-up was called “Operation Legend,” in honor of LeGend Taliferro, a four-year-old boy who was shot to death while sleeping in his home in Kansas City. On Monday, Barr provided an update on what the operation has yielded so far.

I explained when Legend was announced that the feds’ strategy did not involve posses of agents descending uninvited by the states, as some reporting and Democratic commentary suggested. It was a beefing up of existing federal-state task forces. For decades, these joint arrangements have targeted gang and drug crime.

The plan called for the contribution of more FBI, DEA, and other federal law-enforcement agents, along with the provision of funds to make it easier for states and municipalities to contribute more police. The arrangement, in which the state and local officers are often deputized as special federal agents, gives investigators the option to bring the people they’ve arrested to either state or federal court.

The latter option is especially helpful in multi-defendant cases: Under federal law it is easier to prove conspiracy, the penalties are stiffer, and the pretrial supervision is stricter — demanding bail conditions or denial of bail for defendants who endanger the community or are real flight risks.

For example, in the Legend update on Monday, Barr touted the prosecution of a 26-defendant drug-trafficking gang in Milwaukee. Arrests were made starting Monday morning. In just that day’s seizures, 33 guns were recovered, along with $170,000 in cash, and quantities of heroin that were large by street-level distribution standards, as well as cocaine and marijuana. One of the alleged ringleaders is said to be a Mexican Posse gang member who runs a nationwide drug trafficking network.

The Justice Department elaborates that, after originating in Kansas City, Chicago, and Albuquerque, Operation Legend has been expanded to Cleveland, Detroit, Milwaukee, St. Louis, Memphis, and Indianapolis. More than 3,500 arrests have been made, about 815 of them federal. Approximately 200 of the total arrests involve homicide cases. Of the 815 federal prosecutions, over 440 charge firearms crimes, and over 300 involve drug crimes. The penalties for these offenses are severe, especially when they occur together (as usually happens in gang cases).

The DOJ further reports that “more than 1,000 firearms have been seized; and nearly 18 kilos of heroin, more than 11 kilos of fentanyl (enough to deliver more than five million fatal doses), more than 94 kilos of methamphetamine, nearly 14 kilos of cocaine, and more than $6.5 million in drug proceeds have been seized.”

These could be significant results. How significant can only be determined when we see whether crime rates in these cities ebb. That will take some time, but when crime spikes, it is not materially suppressed unless the criminals are convinced that anti-crime operations are going to be sustained.

The DOJ provided a press release (here) which breaks down Operation Legend cases by city.

Law & the Courts

Poll Respondents: We Have No Idea Who Is on the Supreme Court or What We Think of Them

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Supreme Court justices settle in for their group portrait, November 30, 2018. (Jim Young/Reuters)

Marquette Law School released some fascinating results of a survey measuring what Americans think — and what they know — about the Supreme Court.

Most voters have limited familiarity with the justices. Prior to her death, Justice Ginsburg was the most widely recognized of the nine justices, with 63 percent saying they knew enough to have a favorable or unfavorable opinion of her. Justice Brett Kavanaugh, whose confirmation in 2018 followed a contentious debate, was almost as well known, with 60 percent able to give an opinion about him. These are the best-known justices and, in the survey, 24 percent were unable to give an opinion of any of the nine justices, and just over half, 52 percent, could give an opinion of only three justices or fewer. Thirty percent could give an opinion of six or more justices.

Despite extensive news coverage, documentaries, a Hollywood biopic, T-shirts, action figures, a board game, and various other forms of pop-culture celebrity, 17 percent of respondents said they had never heard of Ruth Bader Ginsburg.

Perhaps most surprisingly, 39 percent of Americans don’t have an opinion about Brett Kavanaugh. (Among those who did, 28 percent felt favorable, 32 percent felt unfavorable.) His confirmation hearings were not exactly quiet or obscure; his nomination was arguably the biggest and most contentious fight in American politics in 2018, full of lurid accusations and vehement denials. And yet two years later, two out of every five Americans don’t have an opinion about him; 16 percent of respondents said they had never heard of him.

And those are the well-known justices. The survey found 53 percent of respondents have no opinion about Sonia Sotomayor, 55 percent have no opinion about Clarence Thomas (!); 58 percent have no opinion about John Roberts; 66 percent have no opinion about Neil Gorsuch; 73 percent have no opinion about Elena Kagan; 74 percent have no opinion about Samuel Alito and 81 percent of respondents had no opinion about Stephen Breyer.

During every big Supreme Court fight, pundits speculate about the long-term political effects of the fight. Considering how little Americans know or choose to remember about the Supreme Court, there is good reason to think that those effects are overstated. It is particularly fair to wonder if Supreme Court nominations really motivate the Democratic Party’s base. In 2016, Democrats did not mention Merrick Garland at their convention or much on the campaign trail; in 2020, Democrats barely mentioned judges at their convention.

Politics & Policy

Hidin’ Biden and the Invisible Woman

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Democratic presidential candidate and former Vice President Joe Biden, his wife Jill Biden and Senator and Democratic candidate for Vice President Kamala Harris celebrate outside the Chase Center during the 2020 Democratic National Convention, in Wilmington, Del., August 20, 2020. (Kevin Lamarque/Reuters)

Should Joe Biden blow the lead he has held virtually all year and President Trump be reelected, we will of course be treated to ringing choruses insisting the outcome was illegitimate because of (take your pick) Russian interference, Facebook, nefarious voter-suppression schemes, and so forth.

But anyone who has ever watched a football game can tell you that the prevent defense is an excellent way to prevent your side from winning. I think that if Biden loses, Americans will properly reject all stolen-election theories and place the blame squarely on Biden himself and his bizarrely somnolent campaign strategy. Night after night, while Team Trump goes out knocking on doors and Trump himself frequently ventures out to plead his case with the voters, Joe is bidin’ his time. His campaign isn’t knocking on any doors to plead his case for fear of coronavirus and this month Biden has already “called a lid” on eight different mornings, meaning he is . . . taking lots of days entirely off. Yesterday he called a lid at 9:22 a.m. Who calls it a day at 9:22 a.m. besides Homer Simpson? Is Biden trying to win or just expecting victory to be delivered by the UPS man?

With less than six weeks to go, Biden’s behavior is either baffling or justified by some factor we don’t yet know about. Meanwhile, Kamala Harris has not done a single interview or formal press conference in the six weeks since she was tapped as Biden’s running mate. Remember when Sarah Palin was similarly tapped and the press relentlessly hounded John McCain’s campaign to make her take questions from somebody? (And when she did agree to speak to Katie Couric, things didn’t go well for her.) Harris might as well be cloistered in an abbey.

At the end of a football game, the pundits sometimes say things like, “It was clear who wanted it more.” If Biden loses on November 3, the answer to the question “Who wanted it more” will be obvious to everyone.

Media

Toobin’s Abortion Obsession

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Consultant Jeffrey Toobin participates in a panel for the FX Networks The People v. O.J. Simpson: American Crime Story during the Television Critics Association Cable Winter Press Tour in Pasadena, Calif., January 16, 2016. (Kevork Djansezian/Reuters)

Jeffrey Toobin, CNN’s partisan legal “analyst,” seems anxious about the future of abortion. Today, when Alisyn Camerota asserted that “obviously” abortion would be outlawed if SCOTUS overturns Roe v. Wade,” Toobin responded, that the “central goal of the conservative legal movement to get that case overturned.”

First of all, overturning Roe v. Wade wouldn’t mean the “outlawing” of abortion. This is a popular misconception. If Roe, a decision whose legal reasoning has been widely criticized, was overturned, states would take up the issue in their legislatures and their state constitutions, just like almost every other political issue.

The same Democrats who are constantly griping about our allegedly corroding “democracy” seem awfully nervous about letting people engage in a debate on the specifics of the practice rather than leaning on the fiction that it is an inalienable “right.” As Charles pointed out this morning, if “most Americans support its legality in all or most cases,” as some argue, there should be little problem keeping it legal. Camerota is factually wrong.

Toobin’s scaremongering over abortion is nothing new, either. When Anthony Kennedy retired in June of 2018, he predicted that the abortion would “be illegal in twenty states in 18 months.” Instead, we have the most pro-abortion ticket in presidential history.

Now, don’t get me wrong, Roe is important for many conservatives — myself included. But when I hear originalists and Federalist Society folks talking about the courts — and I listen to them quite often — they speak about array of issues. It’s liberals who seem obsessed with Roe. When it comes to the Supreme Court, they rarely seem to talk about anything else.

Culture

Fantasizing about Conservative Incivility

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At the New York Times, Peter Baker breathlessly reports that “When news broke on Friday that Justice Ruth Bader Ginsburg had died, President Trump was just five minutes into a campaign rally in Minnesota and aides opted not to pass word to him onstage. If he announced the death of the liberal justice from the lectern, they feared the crowd would cheer.”

CNN’s Jake Tapper tweeted out Baker’s piece and used the above excerpt as a caption. There’s something galling about journalists fantasizing about conservative incivility while Joy Reid, the host of an MSNBC show, endorses and laughs at the suggestion that the late, great Antonin Scalia is in hell.

Elections

The Election Is Poised on a Knife’s Edge . . . between a Trump Victory and a Biden Blowout

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The Trump folks look at Florida, North Carolina, Georgia, Arizona, and Pennsylvania as the key states — if they win those, Trump wins the presidency again. And that’s not a wild scenario. Trump has clearly closed the gap in Pennsylvania. GOP internals show him down about two to four points now, when he was losing by about six to eight points roughly six weeks ago. Meanwhile, Trump leads by four points among likely voters in Florida in the new ABC/Washington Post poll and by one point among likely voters in Arizona.

On the other hand, other polls have Biden leading in Florida and Arizona, and he could conceivably expand the map elsewhere. A Des Moines Register poll has him tied with Trump in Iowa. A Rasmussen poll had him ahead in Ohio a couple of weeks ago. If he wins in places such as Iowa and Ohio, it’s going to be a huge night for him.

So here we are, with the range of realistic possibilities that includes another Trump win or, in electoral terms, a Biden landslide. A small shift one way or the other, and races can easily tilt one way or another right at end, could make an enormous difference.

Politics & Policy

‘Are You Now, or Have You Ever Been, a Catholic?’

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U.S. Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett, a law professor at Notre Dame University, poses in an undated photo obtained from Notre Dame University, September 19, 2020. (Matt Cashore/Notre Dame University/Reuters)

As we await word on President Trump’s SCOTUS nominee, hit pieces against possible nominee Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals are already being prepared. I wonder what the Venn diagram would look like if you compared a) people who think it was one of the most shameful episodes in American history when Joe McCarthy called in Americans to grill them about whether they had ever been members of a party dedicated to the overthrow of the United States government with b) people who think it is absolutely vital to grill a Supreme Court nominee about her membership in the Catholic Church.

Catholics who don’t actually seem to believe the most important stuff Catholics are supposed to believe, such as Joe Biden, are of course okay. Barrett’s Catholicism, though, is bound to be put under a microscope.

Law & the Courts

Hearings on the Supreme Court Nominee Will Be Good for Republicans

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Steps of the U.S. Supreme Court building in Washington, D.C., January 2020 (Sarah Silbiger/Reuters)

Rush Limbaugh has suggested that Republicans should skip over the committee hearings for Donald Trump’s Supreme Court nominee to replace Ruth Bader Ginsburg, and go straight to a vote:

“I want the Judiciary Committee — that could be great if it were skipped,” Limbaugh said Monday on his daily radio program. “We don’t need to open that up for whatever length of time, so that whoever this nominee is can be Kavanaugh’d, or Borked, or Thomas’d. Because that’s what it’s going to be, especially when it’s not even required.”

Ins and outs of Senate rules aside, if Republicans like the nominee and have the votes, and if they are worried about delays or controversies that could derail a swift confirmation, there is an arguable case for skipping a hearing, similar to the case for skipping live witnesses at the impeachment trial. After all, nothing in the Constitution requires hearings, which were not held until 1916 and not a matter of regular practice until after World War II. Hearings are for the benefit of the senators to make a decision, so if their minds are already made up, the hearings are superfluous. That is why it would have been a pointless charade in 2016 to call Judge Merrick Garland away from his day job on the D.C. Circuit to grill him over a nomination the Senate majority had already decided to reject. And it is likely that the nominee here will be a woman who was already grilled once by the Senate Judiciary Committee within the past three years.

That said, informing the senators is not the only reason why a majority party might choose to hold hearings. Just as is true with oversight hearings, part of the function of modern hearings is to put on a case to persuade voters. In this case, that would be persuasion on two fronts: showing that Trump has chosen a good and sympathetic nominee, and offering Senate Democrats an opportunity to misbehave for the cameras. That latter objective, which played such a large role in firing up conservatives during and after the Kavanaugh hearings, is of particular use because one of the very worst Democrats on the Senate Judiciary Committee is the vice presidential nominee, Kamala Harris. There is a reason why Harris has kept such a low profile since the convention.

Some Democrats seem to recognize that they have a problem with their recurring habit of attacking the religion of Catholic judicial nominees, a problem that could be especially acute in a year when Joe Biden is trying very hard to court the Catholic vote. That is an especially high risk with Amy Coney Barrett, whose nomination three years ago to the Seventh Circuit was met with direct attacks on her religion (Dianne Feinstein famously telling her that “the dogma lives loudly within you”) and who is already the subject of Reuters and Newsweek assaults on her faith comparing her to Margaret Atwood’s The Handmaid’s Tale (Newsweek had to correct a false report claiming that a group Barrett purportedly belongs to was the inspiration for Atwood’s book).

Manu Raju of CNN talked to Democratic Senators and found some, such as Richard Blumenthal of Connecticut, running away from a reprise of that, while Feinstein demurred. But Hawaii’s Maisie Hirono bluntly answered “No” when asked if Barrett’s faith would be off limits. And Raju did not get comments from Harris, Democratic whip Dick Durbin, or Sheldon Whitehouse, three of the worst past offenders in this area. The temptation will simply be too great to keep everyone in line.

Republicans should have the confidence to see the hearings — which Lindsey Graham has said will run the week of October 12, after Harris’s October 7 debate with Vice President Pence — as a plus. While there are always risks, the Democrats have more to lose by drawing a contrast between the nominee and the Judiciary Committee’s Democrats.

Politics & Policy

What Missed Opportunity?

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Jonah Goldberg writes for The Dispatch that Republicans have missed out on their chance to exchange the opportunity to fill Ruth Bader Ginsburg’s vacant seat on the Supreme Court for a promise from Democrats that they will not pack the Court should they take back the White House and Senate in November. Ramesh Ponnuru has explained why such a deal does not make any practical sense for Republicans, while Alexandra DeSanctis and I have already taken issue with it on principle. Ponnuru has been vindicated as Democrats are already backing down on the court-packing question.

The question Goldberg poses in his piece is: “What happens when both parties embrace the doctrine of ‘do whatever you can get away with?’” I share Goldberg’s concerns about power worship in American politics, but a Republican president putting forward, and a Republican majority confirming an eminently qualified nominee is not the raw, in your face, exercise of power that Goldberg paints it as. And it’s certainly not comparable to court-packing in that regard.

The case against moving forward with a nomination is that Republicans are breaking the precedent they set by refusing to grand Merrick Garland so much as a hearing in 2016. Mitch McConnell has been consistent in arguing that Garland should not have been confirmed because the White House and Senate were controlled by opposite parties then. However, Goldberg notes that other Republicans, such as Judiciary Committee chairman Lindsey Graham, have been openly hypocritical. Goldberg says that by not reaching a deal, party leaders have disregarded the “long-term good of the country.” I don’t understand how it is in the long-term interest of the country to hold off on confirming a justice who will interpret the Constitution as written. Especially if it is for the sake of bailing out the Democrats on their empty but still irresponsible threats and not making a liar out of Lindsey Graham.

World

Scotland’s Bill Is Still Authoritarian

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Under sustained pressure, Scotland’s Justice Secretary, Humaz Yousaf, has slightly diluted his dismal hate-crime bill, admitting that it could undermine free speech. In its current form, the bill could land a person found guilty of “stirring up” hatred (whatever that means) with a seven-year prison sentence. From today’s Sun:

Today, Mr Yousaf said he would change the Bill so a crime would only be committed if there was “intent” to stir up hatred against minority groups based on characteristics of age, disability, religion, sexual orientation, transgender identity and variations in sex.

Yousaf said:

I hope this fundamental change will provide necessary reassurance that the new stirring up hatred offences strike an appropriate balance between respecting freedom of expression while protecting those impacted by people who set out to stir up hatred.

Well sorry, it doesn’t. The bill is intrinsically authoritarian and ought to be rejected outright. James Gilles, the spokesperson for the Free to Disagree Campaign, a coalition of civil-liberty groups and free-speech proponents, commented:

Crucially, the government and other proponents have not demonstrated how these specific proposals would reduce hate-related crimes, or lend greater protection to citizens. Existing laws already catch violence, harassment and abuse. The Criminal Justice and Licensing Act criminalises those who intentionally or recklessly cause fear or alarm. And there are aggravated offences for crimes motivated by hatred and prejudice.

Tackling hatred and prejudice can be achieved by other means – good education and support for families and communities and training for public bodies, rather than punitive measures. In championing these things, the Scottish Government can help to engender an atmosphere of kindness, tolerance and respect in Scotland, without undermining other important rights. We call on Mr Yousaf to reconsider and take this better approach.

Elections

Biden’s Campaign Schedule Is Mystifying

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There is a lot about this Biden campaign that is odd. As of late, Biden’s team has regularly put a “lid” on his day by noon — or even earlier. And, when it does not, the events that Biden attends seem to have been designed to be either easily cancelable or easily replaceable. Were President Trump to cancel a rally, he would be unable to hide it. This is not true of the events on Biden’s schedule, which, the New York Times‘s Mark Leibovich observes, are “quiet, eerie and almost entirely fan-free.”

Indeed, as Leibovich notes, when Biden goes anywhere:

There is scant physical evidence that the former vice president and Democratic nominee is in town. His visits are scarcely publicized beforehand, logistical details are closely held and his event venues serve as much as video studios as places of gathering. Barely anyone is allowed near the candidate.

Those with suspicious minds have started to wonder if there is something wrong with Biden. Perhaps he is unable to work every day? Perhaps his schedule needs to be set up in such a way as it can be amended without notice? There are, of course, other explanations for Biden’s absence. It may be that he is determined to avoid contracting coronavirus, or that he has noticed that he’s winning from his redoubt and so wishes to avoid rocking the boat. Irrespective, the dynamic surely has to be worrying some observers. The dirty little secret of 2016 was that Donald Trump outworked Hillary Clinton. Trump held more rallies, visited more states, and made himself more available to the press. This worked. It could plausibly work again.

Religion

Vatican: No Sacraments for People Choosing Euthanasia

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The Vatican has made it clear that euthanasia and the Sacraments are not compatible. From the Crux story:

When it comes to euthanasia, “we find ourselves before a person who, whatever their subjective dispositions may be, has decided upon a gravely immoral act and willingly persists in this decision,” the Vatican said, insisting that in these cases, the person’s state “involves a manifest absence of the proper disposition for the reception of the Sacraments of Penance, with absolution, and Anointing, with Viaticum.”

“Such a penitent can receive these sacraments only when the minister discerns his or her readiness to take concrete steps that indicate he or she has modified their decision in this regard,” the Vatican said.

The statement declares that such a denial is not a rejection of the despairing person. To the contrary:

Care, the document stresses never ends, even when treatment is no longer justified.

On that basis, the document issues a firm “no” to euthanasia and assisted suicide.

“To end the life of a sick person who requests euthanasia is by no means to acknowledge and respect their autonomy, but on the contrary to disavow the value of both their freedom, now under the sway of suffering and illness, and of their life by excluding any further possibility of human relationship, of sensing the meaning of their existence, or of growth in the theologal life.”

“It is to take the place of God in deciding the moment of death,” the document says.

The spiritual/eternal consequence aspect of the Vatican’s policy is outside my purview. But if the Church’s statement about the inherent wrongness of euthanasia helps some people — Catholic or not — back off from the brink, and/or some doctors refuse participation, it will have served a tremendous societal purpose.

Law & the Courts

Conservatives Care More Than Liberals about the Supreme Court — Here’s Why

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My Bloomberg Opinion column today offers some explanations for a basic fact about judicial politics.

NRI Marketing

The Buckley Dinner Must Go On!

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And we hope to see you, if virtually this year. We are honoring the great James Buckley, the very model of a conservative statesman, jurist, and thinker, and Virginia James, who has done so much to support liberty and our civilization. Our friends at NRI have come up with a lively, imaginative program, and we hope you’ll be part of it. You can find out more and sign up here.

Politics & Policy

What Does an Incumbent Think Is Worth Losing an Election?

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Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

Over on the home page, Dan McLaughlin has an excellent and persuasive column arguing that Republican senators should do what they believe is right, regardless of any potential political risk in November: Consider President Trump’s nominee to the Supreme Court and, presuming they find the nominee qualified and worthy addition to the court, vote to confirm the nominee.

He notes, “this is not the thing you trade away to win one election; it is the thing you win many elections to be able to do. It is what political capital is for. Democrats felt the same way about Obamacare, which is why so many of their legislators were willing to sacrifice their careers to pass it.”

This is not hyperbole. Democrats knew that they were not winning the public-opinion fight over the Affordable Care Act in 2009, and that many House Democrats who voted for it were likely to be goners in the midterms. Time magazine reported that then-speaker Nancy Pelosi thought it was a worthwhile trade, if necessary.

The health care bill was unpopular, and members from swing districts worried they’d lose their seats over it. But the damage was likely already done—they could be attacked for trying and failing, or they could be attacked for trying and succeeding. Pelosi told colleagues she believed health care reform was an accomplishment so monumental it would be worth losing the majority over. The point of power, to her, couldn’t be just to hold on to it—it had to be to achieve things that would benefit people.

One of those House Democrats who lost his seat, Tom Perriello, writes he never regretted his decision:

In 2010, as a freshman congressman, I stared down the same threats that many Republican representatives face today, and I had to balance what I thought was right versus what I knew was politically advantageous. I was a Democrat representing a red Virginia district. Back then, a vote backing the Affordable Care Act — which Republican strategists had already branded “Obamacare” — meant facing millions of dollars in right-wing attack ads and almost certain defeat at the polls that fall.

My critics were right: I did lose my seat. But I never regretted my vote. Not once.

The GOP-controlled Congress repealed Obamacare’s individual mandate in 2017, and in 2019 Congress repealed the so-called “Cadillac” tax on health-insurance benefits, an excise tax on medical devices, and the Health Insurance Tax. But otherwise, the legislation remains intact — the expansion of Medicaid eligibility, the changes to the individual market, the employer mandate, the ban on restricting applicants with pre-existing conditions, dependents are permitted to remain on their parents’ insurance plan until their 26th birthday . . . to almost all of the House Democrats, those sorts of seemingly permanent changes to how Americans get health insurance were worth sacrificing their House majority.

What do Republicans believe is worth sacrificing a Senate seat over?

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