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Old 03-22-2017, 03:24 PM   #101
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“And what would you have done?” Franken asked. “I’m asking you a question. Please answer the question,” Franken pressed.

“Senator, I don’t know,” the finest legal mind in all of conservative America answered. “I wasn’t in the man’s shoes, but I understand why…”

“You don’t know what you would’ve done,” Franken summed up for him. “OK, I’ll tell you what I would’ve done. I would’ve done exactly what he did. And I think everybody here would’ve done exactly what he did. And I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that.”

From there, Franken turned to the dissent Gorsuch wrote. As Franken described it, the issue came down to a “plain meaning” rule: “When the plain meaning of a statute is clear on its face, when its meaning is obvious, courts have no business looking beyond the meaning to the statute’s purpose.” That’s what Gorsuch relied on in his ruling.

“But the plain meaning rule has an exception,” Franken continued. “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. . . . It is absurd to say this company is within its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.”

“I had a career in identifying absurdity,” the former “Saturday Night Live” writer and performer added — and the room briefly burst out in laughter — “and I know it when I see it . . . and it makes me question your judgment.”
Although it will likely have no effect on Judge Gorsuch's confirmation to the Supreme Court, Sen. Franken almost certainly achieved his purpose -- to create the illusion that Judge Gorsuch callously abandoned the generally accepted exclusion to the "plain meaning rule" to the detriment and utter disregard for the welfare and possible survival of a stranded truck driver named Alphonse Maddin.

The problem is, there is no such federal appeals case entitled Maddin v. Trans Am Trucking, or vice versa. But if you Google it, as I did, you will return a case entitled Trans Am Trucking v. Administrative Review Board, United States Department of Labor. The sole issue in THAT case was whether the review board (ARB) properly applied the "whistle blower" provision of the Surface Transportation Assistance Act when it ordered Trans Am to reinstate Maddin to his job with back pay.

Accordingly, Judge Gorsuch's dissent was directed solely to the proper application of the relevant statute:

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It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from firing employees who “refuse to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.
It might also be a fair question to ask if Gorsuch's legal analysis of 49 U.S.C. § 31105(a)(1)(B) is truly sound in light of the comparative arguments of his 10th Circuit colleagues in the majority.

What is decidedly UNFAIR and wholly inappropriate is to expect a judge to apply an exception to the "plain meaning rule" when "using the plain meaning rule would create an absurd result." In fact, the plain meaning of the statute did NOT create such a result.

How in the hell would I know? Because if it had, there is every reason to believe that the other two circuit court judges in the majority opposed to Gosrsuch would have used that argument. And they didn't.

The entire argument between Gorsuch and his colleagues was whether Trans Am violated the law as written. No exception to the statute as written was required.

Unless, of course, you are a grandstanding U. S. Senator grasping at partisan straws.
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Old 03-22-2017, 03:25 PM   #102
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And looked like an asshole doing so. Did anyone get to hear Gorsuch's response or rationale? What Franken knows about the law can probably summed up inb two words...not much.
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Old 03-22-2017, 03:28 PM   #103
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Originally Posted by Colonel Hogan View Post
Although it will likely have no effect on Judge Gorsuch's confirmation to the Supreme Court, Sen. Franken almost certainly achieved his purpose -- to create the illusion that Judge Gorsuch callously abandoned the generally accepted exclusion to the "plain meaning rule" to the detriment and utter disregard for the welfare and possible survival of a stranded truck driver named Alphonse Maddin.

The problem is, there is no such federal appeals case entitled Maddin v. Trans Am Trucking, or vice versa. But if you Google it, as I did, you will return a case entitled Trans Am Trucking v. Administrative Review Board, United States Department of Labor. The sole issue in THAT case was whether the review board (ARB) properly applied the "whistle blower" provision of the Surface Transportation Assistance Act when it ordered Trans Am to reinstate Maddin to his job with back pay.

Accordingly, Judge Gorsuch's dissent was directed solely to the proper application of the relevant statute:



It might also be a fair question to ask if Gorsuch's legal analysis of 49 U.S.C. § 31105(a)(1)(B) is truly sound in light of the comparative arguments of his 10th Circuit colleagues in the majority.

What is decidedly UNFAIR and wholly inappropriate is to expect a judge to apply an exception to the "plain meaning rule" when "using the plain meaning rule would create an absurd result." In fact, the plain meaning of the statute did NOT create such a result.

How in the hell would I know? Because if it had, there is every reason to believe that the other two circuit court judges in the majority opposed to Gosrsuch would have used that argument. And they didn't.

The entire argument between Gorsuch and his colleagues was whether Trans Am violated the law as written. No exception to the statute as written was required.

Unless, of course, you are a grandstanding U. S. Senator grasping at partisan straws.
Thank you for the scholarly response. I didn't have time to look it up myself and if I did I couldn't have done a better job at spelling it out.
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Old 03-22-2017, 03:28 PM   #104
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Originally Posted by BoyNextDoor View Post
https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf

APPEAL FROM THE DEPARTMENT OF LABOR (except OSHA)
(ARB No. 13-031)
Brad K. Thoenen (Kendra D. Hanson with him on the briefs), Seigfreid Bingham,
PC, Kansas City, Missouri, for Petitioner.
Scott Glabman, Senior Appellate Attorney (M. Patricia Smith, Solicitor of Labor;
Ann Rosenthal, Associate Solicitor for Occupational Safety and Health; Heather
R. Phillips, Counsel for Appellate Litigation, with him on the brief), U.S.
Department of Labor, Washington, D.C., for Respondent.
Robert D. Fetter, Miller Cohen, P.L.C., Detroit, Michigan, for Intervenor.

Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
Good for you!!


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Wiki and the NYTs thought so as well. This from the syllabus:

but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.
And good for you, too!!

Ain't legal research fun!?
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Old 03-22-2017, 03:53 PM   #105
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The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.
Bullshit. What else was he supposed to do? Stay there and freeze? Gorsuch's dissent is an absurd result, and that loophole he pretends to see is bullshit -- if it's there, why didn't the other two judges see it?
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Old 03-22-2017, 04:09 PM   #106
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Originally Posted by KingOrfeo View Post
Bullshit. What else was he supposed to do? Stay there and freeze? Gorsuch's dissent is an absurd result, and that loophole he pretends to see is bullshit -- if it's there, why didn't the other two judges see it?
The case and, more importantly, Judge Gorsuch's dissent is NOT about what the driver was supposed to do. GET THAT THROUGH YOUR THICK HEAD!!!

It is simply about whether his despicably, insensitive, arrogant, dick-faced employer was LEGALLY within its rights to fire him under the law as written.

As a matter OF LAW, the 10th Circuit Court ruled that the employer did NOT have that right. As a matter OF LAW, Judge Gorsuch dissented.

If you wish to contribute something meaningful here, stick to an analysis of THE LAW as it was argued in the case and forget the damn truck driver!!

You know, the very thing Al Franken had no intention of doing.
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Old 03-22-2017, 04:12 PM   #107
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Originally Posted by Colonel Hogan View Post
The case and, more importantly, Judge Gorsuch's dissent is NOT about what the driver was supposed to do. GET THAT THROUGH YOUR THICK HEAD!!!

It is simply about whether his despicably, insensitive, arrogant, dick-faced employer was LEGALLY within its rights to fire him under the law as written.
And distinguishing "ceasing to operate" the vehicle from driving off in the cab alone is a bullshit interpretation of that law, which obviously contemplated just this sort of situation.
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Old 03-22-2017, 04:16 PM   #108
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Watching Gorsuch tapdance to explain his long held belief is that "health and safety" is overbroad and should be ignored.

He's been pro-business on virtually every single business-vs-employee case brought before him. He's been the "1" on a number of 6-1 decisions.

No doubt in my my mind he would be a Scalia-class judicial activist on the Supreme Court.
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Old 03-22-2017, 04:24 PM   #109
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And distinguishing "ceasing to operate" the vehicle from driving off in the cab alone is a bullshit interpretation of that law, which obviously contemplated just this sort of situation.
Thank you!! That is precisely the kind of argument Franken should have focused upon. But it lacks the human drama of casting a villain in opposition to a helpless victim.

Those dramas are typically played out at trial. My understanding of the law is that they have NO PLACE on appeal -- most certainly by the time they reach the federal circuit level.

I keep marveling in astonishment that you, as an alleged lawyer, keep missing these hardly insignificant details of appropriate legal procedure and review and make stupid, emotional, off-point arguments that lawyers might make to a jury, but would NEVER make in a legal brief on appeal.

Why do you do that?
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Old 03-22-2017, 05:04 PM   #110
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Thank you!! That is precisely the kind of argument Franken should have focused upon. But it lacks the human drama of casting a villain in opposition to a helpless victim.
Why should he? He made his point -- Gorsuch was willing to apply the law dubiously to reach a conclusion favorable to an employer, and it calls his judgment into question.

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Those dramas are typically played out at trial. My understanding of the law is that they have NO PLACE on appeal -- most certainly by the time they reach the federal circuit level.
Whatever drama the facts of the case present remain on the appeal record (and so does the courtroom drama, in the form of a transcript), and most appellate judges do have human sympathies; they might perhaps bend to reach an opinion if they can in any way relate the drama to the issues on appeal.
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Old 03-22-2017, 05:46 PM   #111
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Why should he? He made his point -- Gorsuch was willing to apply the law dubiously to reach a conclusion favorable to an employer, and it calls his judgment into question.
No. Both employer and truck driver -- and far more relevantly in the case of Senate judicial hearings Judge Gorsuch -- are entitled to an accurate adjudication of the law and HIS ADJUDICATION of the law as he dispensed it. Franken impeached Gorsuch's adjudication of a legal principle that was NOT at issue. One can arguably still hold Gorsuch's dissent as "dubious" but only fairly so in comparison to his colleagues in opposition on the 10th Circuit. When we do that, his dissent, at least in my view, is far from the outrageous, inhuman response to a hapless suffering victim that Franken sought to misrepresent. If Franken had stuck to a fair analysis of Gorsuch's legal error, I would have had no gripe -- or at least a potentially far different gripe.

Just as I was far less contentious when you finally turned your attention to the legal holdings in the case rather than fixating on the dire circumstances that produced the initial dispute.

Quote:
Whatever drama the facts of the case present remain on the appeal record (and so does the courtroom drama, in the form of a transcript), and most appellate judges do have human sympathies; they might perhaps bend to reach an opinion if they can in any way relate the drama to the issues on appeal.
It is my understanding that the presence of the "facts of the case" are essentially presented in the appellate transcript for the purpose of focusing the application of the law that follows. It is NOT for the purpose of retrying issues at trial, nor is it to invite or condone justices "bending" because they can "relate" to a previously staged "drama."

The ONLY proper questions for an appellate judge to consider are whether the drama was "staged" AND "decided" according to LAW.
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Old 03-22-2017, 06:11 PM   #112
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No. Both employer and truck driver -- and far more relevantly in the case of Senate judicial hearings Judge Gorsuch -- are entitled to an accurate adjudication of the law and HIS ADJUDICATION of the law as he dispensed it. Franken impeached Gorsuch's adjudication of a legal principle that was NOT at issue.
Of course it was at issue; Gorsuch's reading of the "plain meaning" of the statute was nonsense, but in any case he had the discretion to depart from it to avoid an absurd result, and he didn't.
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Old 03-22-2017, 06:38 PM   #113
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Golly.
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Old Yesterday, 04:08 PM   #114
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Sanders to say no to Gorsuch.

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Sen. Bernie Sanders, I-Vt., confirmed Thursday that he planned to oppose Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, saying in a statement that the judge "brought the confirmation process to a new low."

The senator described Gorsuch's efforts to avoid revealing his stance on a number of critical issues as "a thick fog of evasion" that clouded his Senate confirmation hearing this week in Washington, D.C. Sanders' opposition was one of the first rebukes to follow Gorsuch’s hearings and could help provide a precedent for Democratic elected officials to vote "no" for the appeals judge's lifetime opportunity to serve on the highest court in the nation.

"Americans deserve a Supreme Court justice who respects the rights of workers to be treated fairly instead of bowing to big business," Sanders said Thursday. "We cannot stand by while the court dismantles the Voting Rights Act and lets cowards in statehouses erect roadblocks to voting. We must keep campaigns free of the corrupting influence of big money and not go further down the dangerous path that began with the disastrous Citizens United ruling. We cannot risk a court that would put in jeopardy the privacy rights of all Americans and a woman's right to control her body."
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Old Yesterday, 04:58 PM   #115
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Schumer urges opposition to Gorsuch

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Chuck Schumer, the Senate’s leading Democrat, on Thursday vowed to oppose President Donald Trump’s Supreme Court nominee, Neil Gorsuch, arguing the judge didn’t convince him during hearings that he’d be an independent check on the current White House. His comments came after Gorsuch completed about 20 hours of testimony before the Senate Judiciary Committee on Capitol Hill this week.

“I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will have a cloture vote, he will have to earn 60 votes for confirmation. My vote will be ‘no.’ And I urge my colleagues to do the same,” Schumer said on the Senate floor Thursday morning.

He added: “To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules I say: If this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees, and President Bush’s last two nominees, the answer isn’t to change the rules—it’s to change the nominee.”
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Old Yesterday, 05:03 PM   #116
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I'm enjoying watching Wingnut Nation opine that employees have a "legal obligation" to die to protect company property, the very embodiment of the Wingnut Prime Directive, i.e. "Profits Over People".
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Old Yesterday, 05:51 PM   #117
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Al Franken Says the GOP Is Gaslighting Democrats on Garland and Gorsuch.

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At Wednesday’s Senate Judiciary Committee hearing for Supreme Court nominee Neil Gorsuch, Sen. Al Franken expressed his concern about several decisions that favored businesses over consumers. “What we’re worried about,” he explained, “is another 5–4 Roberts Court making one decision after another … that hurts consumers.” Franken then tied conservatives’ interest in preserving these decisions to Senate Republicans’ unprecedented filibuster of Merrick Garland: “You said earlier, there’s no Democratic judges, there are no Republican judges. If that’s the case, what was Merrick Garland about? That’s what it was about. … [This] core group of cases in which the Roberts Court continually has ruled in favor of corporations.”

Franken then alluded to the GOP’s gaslighting of the Democratic Party—“my colleagues on the other side say that we’re making something up over here”—before explaining what he and his Democratic colleagues are up to. “We’re trying to figure out whether we’re going to see a continuation of this pro-corporate bias,” the Minnesota senator said.
Franken in 2020! He's good enough, he's smart enough, and gosh darn it, people like him!
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Old Yesterday, 06:14 PM   #118
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Time for the nuclear option.
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Old Yesterday, 06:29 PM   #119
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Time for the nuclear option.
Fine with me.
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Old Yesterday, 06:37 PM   #120
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Fine with me.
It's clear Democrats have surrendered their ability to fairly judge a good man. When Ginzburg steps down, and that will probably be soon, Trump will pick another conservative to replace her as well, paving the way to really make America great again.
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Old Yesterday, 09:16 PM   #121
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I'm enjoying watching Wingnut Nation opine that employees have a "legal obligation" to die to protect company property, the very embodiment of the Wingnut Prime Directive, i.e. "Profits Over People".
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Time for the nuclear option.
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Originally Posted by KingOrfeo View Post
Fine with me.
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It's clear Democrats have surrendered their ability to fairly judge a good man. When Ginzburg steps down, and that will probably be soon, Trump will pick another conservative to replace her as well, paving the way to really make America great again.
We are clearly embattled in a social war, if not for the ideological hearts, minds and souls of the American populace then at least for overt control over its behavior. Roughly half of us are damned and determined to command the other half as to how to conduct much of their lives. And make no mistake. That agenda is priority #1 for BOTH HALVES!!! There are no innocents here proclaiming "live and let live."

Liberal Democrats and conservative Republicans are equally committed to the proposition that Justitia, the Roman goddess of justice (see image below), will adjudicate less with deference toward balancing the scales in her one hand and far more through effective wielding of the sword in her opposing grasp. And to hell with the blindfold.

How then is that battle apparently viewed by the most famous combatant generals on the front lines -- the Justices of the United States Supreme Court? How frequently do they spill each other's blood, figuratively speaking, and with what degree of passion?

Quote:
What was surprising was how often they agreed to agree. Two-thirds of the 72 cases fully decided this term were unanimous, the highest percentage in years. Most were low-profile disputes, but did include:

* A shockingly united rebuke of law enforcement discretion to search for incriminating data in cellphones and smartphones, when suspects are first arrested. The simple answer: “get a warrant.”

* A narrowly-drawn defeat for the Obama administration on recess appointments, those named to temporarily fill high government positions without Senate confirmation. Congress must define when it’s in recess, not the administration.

Also amazing was that only 14 percent of the court’s decisions were 5-4, with just four of those 10 splits along the liberal-conservative marker. But that included four of the most contentious of petitions:

* The big one on Obamacare gave some for-profit businesses discretion to deny certain birth control insurance based on religious objections centered around anti-abortion beliefs.

* Allowing civic prayers in local town meetings, even if the ceremonies are predominantly offered by Christian citizens.

* Another setback for campaign finance reform, this time giving individual political donors the power to throw more money to more candidates in a federal elections.

* A defeat for public sector labor unions over dues for non-members.

http://wtvr.com/2014/07/01/supreme-c...-this-session/
Wait a minute. Is somebody trying to tell me that the most contentious legal philosophies on the most critical legal issues coming before the highest court in the land are in agreement over 60% of the time? Samuel Alito and Stephen Breyer? Clarence Thomas and Ruth Bader Ginsburg???

Exactly right. See it here: https://www.nytimes.com/interactive/...ent-rates.html

Which is why no matter how much blood letting goes on over a Supreme Court nomination in Congress, the above percentages would not radically change. They would not have likely changed had Garland been confirmed and they will not likely change should Gorsuch be seated on the Court. The battle is for little more than 14% of the law currently in force.

Wonder what the Supreme Court knows that the rest of us appear to be missing?

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Old Today, 01:36 AM   #122
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So Sanders, Franken and Schumer don't want him? That is more than enough reason for any sane person to want him in.
Good fuck, he should already be deciding cases.
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