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Tilting at Windmills

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March 27, 2006
By: Kevin Drum

SCALIA'S MOUTH....The Supreme Court is about to hear a case that will test whether the government is required to provide detainees at Guantnamo Bay with special military tribunals. At a talk a couple of weeks ago, Antonin Scalia made it clear that he's already made up his mind on this case:

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," he says on a tape of the talk reviewed by Newsweek. "Give me a break."

Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

Will Scalia recuse himself following this blunder? I'm going to take the underdog bet on this one and say that he does. Even Supreme Court justices are susceptible to peer pressure, and I have to figure that he's going to feel some heat from his fellow Supremes in this case.

Which could be a real problem for the government. As the Newsweek piece notes, John Roberts has already recused himself because he heard the case as an appellate judge, and if Scalia does the same it means the court will have lost two of its most conservative, pro-administration judges. In other words, the government will probably lose. And all because Scalia couldn't keep his mouth shut.

Kevin Drum 11:32 AM Permalink | Trackbacks | Comments (140)

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Comments

I'll take that bet. Quack quack.

Posted by: craigie on March 27, 2006 at 11:35 AM | PERMALINK

Unfortunately, Scalia is making the same calculation as you right now - and won't recuse himself.

What peer pressure?

Posted by: mecki on March 27, 2006 at 11:38 AM | PERMALINK

That's assuming your theory is correect, and Scalia would actually recuse himself. Considering his history (duck hunting with Cheney, anyone?) I don't think that's going to be the case.

Posted by: jbk on March 27, 2006 at 11:39 AM | PERMALINK

Scalia has already shown great chutzpah in the question of recusal. He'd sit for the case.

Posted by: MaryCh on March 27, 2006 at 11:40 AM | PERMALINK

That's a seriously underdog bet. Scalia refused to recuse himself in the Cheney energy task force case despite an obvious and blatant confliict of interest.

What makes you think he'll recuse himself here? Peer pressure? Don't make me laugh. Scalia has already said publicly that he holds nothing but contempt for his more liberal colleagues on the bench. Just how much influence do you think they will have on him in this instance?

Posted by: Derelict on March 27, 2006 at 11:40 AM | PERMALINK

Kevin, you can be so naive sometimes. Scalia has the power, no one can make him recuse himself, so he won't. I'll bet you a good bottle of Wa. red/white against a CA vintage, I'm so sure of this.

Posted by: moe99 on March 27, 2006 at 11:41 AM | PERMALINK

another foolish Drum opinion in which he still fails to see through the kind of people we are up against. But he has always gone out of his way to appear a 'rational' and 'fair' commentator to the other side. And they love him for it.

Posted by: slammin' sammy on March 27, 2006 at 11:45 AM | PERMALINK

Anyway, Kevin, as you yourself have pointed out, many of the Guantanamo detainees were not captured on the battlefield in Afghanistan. Many were captured in Pakistan, quite possibly on the basis of dubious evidence and finger-pointing motivated by reward money or revenge. So Scalia is factually mistaken if he presumes that anybody at Guantanamo was a battlefield combatant. Who knows- maybe that means he will be willing to make that distinction (between battlefield combatants and other detainees) when he hears the case.

Posted by: Foo Bar on March 27, 2006 at 11:46 AM | PERMALINK

I'm just a humble left-wing blogger and don't speak for Democrats or for the Democratic Party. So let me stereotype.

Scalia sure does sound like the Sicilian Mafia here. "Blood is thicker than water", and "omerta", and all the rest: if you hurt my family, I take revenge.

There are various legal issues here, and Scalia is a judge -- but who cares about the law when family is involved? Scalia's a thug protecting his own.

Having family in the military wouldn't require him to recuse himself, but his thug attitude should.

Posted by: Humble blogger on March 27, 2006 at 11:47 AM | PERMALINK

I'll take that bet. Jesus wouldn't recuse himself, and neither will Scalia!

Posted by: Freedom Phukher on March 27, 2006 at 11:48 AM | PERMALINK

Your payout is going to be huge, Kevin.

Against all previous evidence, you're still calculating these guys' actions based on what reasonable people would do. What about Scalia's past actions would lead you to believe he's going to do the honorable thing now?

Posted by: shortstop on March 27, 2006 at 11:51 AM | PERMALINK

Roberts' recusal is another reason why Scalia will hear this case. He still resents not being elevated to Chief Justice, and relishes an opportunity to play Chief Conservative in this case.

Posted by: Our Man in Terre Haute on March 27, 2006 at 11:51 AM | PERMALINK

I offer my most sincere apologies to Justice Scalia for putting him in a position where he had to say this.

Posted by: monica whittington on March 27, 2006 at 11:51 AM | PERMALINK

I seriously doubt he will recuse himself. But if he does...

And all because Scalia couldn't keep his mouth shut.

Then I hope he opens his mouth more often.

What a wad.

Posted by: E. Henry Thripshaw on March 27, 2006 at 11:52 AM | PERMALINK

Shorter Kevin: Only justices that I agree with can have opinions.

Posted by: Al on March 27, 2006 at 11:54 AM | PERMALINK

Kevin Drum is the Harry Reid of the Blogosphere.

Look at this post from Drum..... nothing but whining and carping.

Does Kevin Drum think the US should give the Guantanamo detainees a military tribunal? We don't know, because Drum doesn't take a position. In Drum's world, you only need to take one position: bashing the GOP. Nothing else matters.

Posted by: Bark At The Moon on March 27, 2006 at 11:59 AM | PERMALINK

I think Scalia will end up recusing himself.

Unlike the duck hunting case (where once Scalia finally wrote a letter explaining why there wasn't a conflict of interest (he bought a ticket on a commercial flight the same day to make up for the private plane, there were many people on the trip and he was never in the same blind as Cheney) the matter became moot), in this matter, the argument for recusal is strong.

Posted by: Nathan on March 27, 2006 at 11:59 AM | PERMALINK

Ladies and gentlemen, a question:

Suppose Scalia doesn't recuse himself.

What is the remedy? Can the other justices vote him off the island, or must we wait for impeachment?

Any other alternatives? Since Bush's 2000 "election," this Court is looking more and more like a rogues gallery.

Posted by: ladiesangemmen on March 27, 2006 at 12:01 PM | PERMALINK

If there is a recusal I think it should really be on conflict-of-interest grounds (he feels his son is implicated in the case) rather than discussion grounds. The idea that Supreme Court Justices don't have opinions on things like this is just silly. If they are going to have ideas which influence their thinking, it is better to know so let them talk.

Posted by: Sebastian Holsclaw on March 27, 2006 at 12:02 PM | PERMALINK

Last thirty five years have shown, and the Bush Presidency as reconfirmed, that your predictions about the course of action that a conservative would take on any issue would be more that 90% accurate if you base it on the assumption that he will follow the worst possible path.

I predict that Scalia would not recuse himself.

Posted by: lib on March 27, 2006 at 12:04 PM | PERMALINK

Sebastian,

If they are going to have ideas which influence their thinking, it is better to know so let them talk.

This would also apply to Supreme Court nominees during their Senate confirmation hearings, right?

Posted by: Edo on March 27, 2006 at 12:06 PM | PERMALINK
If there is a recusal I think it should really be on conflict-of-interest grounds (he feels his son is implicated in the case) rather than discussion grounds. The idea that Supreme Court Justices don't have opinions on things like this is just silly. If they are going to have ideas which influence their thinking, it is better to know so let them talk.

There is a difference between discussing general legal issues and declaring a judgement on a particular case that is coming before the Court before it has been argued.


Scalia, here, has declared a prejudgement of a particular case, which clearly requires recusal.

Posted by: cmdicely on March 27, 2006 at 12:08 PM | PERMALINK

I don't belive them at all!!!!

Posted by: liron on March 27, 2006 at 12:11 PM | PERMALINK

I for one am not worried at all about this. It's not like conservative politicians think they're above the law, and that the rules don't apply to them. Afterall, they're the party of personal responsibility and the source for all morality. They have to be, because they say so all the time.

If Scalia doesn't recuse himself, why, there would be no way at all that conservative pundits would be able to explain away such a clear violation of legal ethics. They would never concoct spin to fool their supporters, because they're always fair and balanced. They have to be, because they say so all the time.

Posted by: DH Walker on March 27, 2006 at 12:14 PM | PERMALINK

"This would also apply to Supreme Court nominees during their Senate confirmation hearings, right?"

If we change the rule, sure.

"There is a difference between discussing general legal issues and declaring a judgement on a particular case that is coming before the Court before it has been argued.


Scalia, here, has declared a prejudgement of a particular case, which clearly requires recusal."

I don't think the line is that clear for Supreme Court Justices. For instance Brennan, Marshall and Blackman all made very clear that they were going to vote no on each and every future death penalty case. Is that prejudging or general legal issue? I could tell you for a fact that Marshall wasn't going to listen and carefully weigh the individual case--he already knew his answer.

Posted by: Sebastian Holsclaw on March 27, 2006 at 12:24 PM | PERMALINK

Sebastian,

At some point, those justices had articulated a legal theory in published cases that they followed in subsequent cases. I don't know how they voted on "each and every future dealth penalty" case, but I could make the same generalization about Scalia -- we already know he's going to vote to execute in all cases. That's a different issue. Here, he hasn't heard legal arguments, read the briefs, and he's not making a legal argument in objection. He's stating that he doesn't think detainees have legal rights because his son used to be in potential in jeopardy in war.

However, those who think Scalia thinks he'll be able to replace Roberts in this case should take a look at the number of unanimous decisions with Roberts in lead, and the number with Scalia. Scalia shoots his mouth off to his other justices, and for that reason, can't convince too many of the ones with their own thoughts (Thomas he convinces all the time). He's too busy talking down to them to convince them.

Posted by: halle on March 27, 2006 at 12:30 PM | PERMALINK

After Bush v. Gore, Scalia's son got a high ranking job in the Bush administration. So did Rehnquist's daughter.

This is just coincidence of course, they were merit-based appointments.

Posted by: Ringo on March 27, 2006 at 12:31 PM | PERMALINK

Sebastian: how about the fact that Scalia sees this issue in terms of its perceived life-or-death affect on his own son? That is an all but explicit statement that he can't be objective. That doesn't concern you at all?

Posted by: DH Walker on March 27, 2006 at 12:32 PM | PERMALINK

Didn't he recuse himself in similar circumstances on the Pledge of Allegiance case? Had shot off his mouth beforehand and then stepped out of it, I think.

It's a different issue than duck hunting with Dick Cheney. If you risk your life socializing with the party to a case, you don't have to recuse yourself.

Posted by: David in NY on March 27, 2006 at 12:32 PM | PERMALINK

Couldn't happen to a nicer group of people.

Posted by: Mazurka on March 27, 2006 at 12:35 PM | PERMALINK

So, in essence, Kevin is saying the liberals side with the terrorists, and the conservatives side with America.

Posted by: Freedom Fighter on March 27, 2006 at 12:35 PM | PERMALINK

After the detainee lawsuit loses, 8 to 1, I can't wait to see Kevin Drum do another whiney blog post on the issue.

Posted by: BigRiver on March 27, 2006 at 12:36 PM | PERMALINK

FF: Are you suggesting that Kevin Drum is a moronic conservative nutjob? Because those are the only people who make that kind of statement.

Posted by: DH Walker on March 27, 2006 at 12:38 PM | PERMALINK
I don't think the line is that clear for Supreme Court Justices. For instance Brennan, Marshall and Blackman all made very clear that they were going to vote no on each and every future death penalty case. Is that prejudging or general legal issue?

It is very clearly a general legal issue; they clearly stated that the death penalty was per se unconstitutional.

I could tell you for a fact that Marshall wasn't going to listen and carefully weigh the individual case--he already knew his answer.

The impartiality expected of judges does not extend to not having firm views on the content of the law; it does, however, extend to not prejudging the particular controversies between particular parties that come before their court.

Now, admittedly, a lot of Supreme Court nominees have deliberately blurred this line to essentially demand that Senate confirmation hearings lack any substance at all, and have gotten away with it because the Senate is unwilling to stand up with them.

But since they've blurred it to suggest that is improper for a judge to discuss anything relevant to an actual or potential controversy in advance, that doesn't really, even if that rule were the right one, reduce the basis for a demand that Scalia recuse himself.

Posted by: cmdicely on March 27, 2006 at 12:40 PM | PERMALINK

Wow...that's surprising.

Not that Scalia had already made up his mind about the case, or that he took a pro-Administration stance, but that he. a prominent Republican, actually has a child at risk in Bush's war.

Surprising indeed.

Posted by: Gregory on March 27, 2006 at 12:41 PM | PERMALINK

Please do not forget that Tony Scales did not recuse himself in Bush v Gore even though his son was an associate in Ted Olsen's law firm......He is a boorish thug deserving of no respect and should be disbarred if not impeached

Posted by: saxonslug on March 27, 2006 at 12:42 PM | PERMALINK

On a different note, if Scalia doesn't recuse himself despite showing an obvious conflict, would doing so be ground for impeachment? (Not under a Republican Congress, of course, but perhaps if a reform-minded new Democratic majority took on blatant judicial corruption...)

Posted by: Gregory on March 27, 2006 at 12:43 PM | PERMALINK

Sebastian,

If we change the rule, sure.

What rule? The Ginsberg "precedent"?

Posted by: Edo on March 27, 2006 at 12:45 PM | PERMALINK

If he doesn't recuse, and Roberts DOES, then he'll prove that Roberts was rightly preferred for Chief Justice of the U.S.

Posted by: ferd on March 27, 2006 at 12:45 PM | PERMALINK

Scalia recuse himself?

When dead ducks shoot back.

Posted by: Jeffrey Davis on March 27, 2006 at 12:46 PM | PERMALINK

Kevin Drum, you are so clever at framing your posts to provoke the most possible disagreeement!

Of course, Scalia won't recuse himself. He regards himself as an agent of the WH, not a justice. What does justice or impartiality have to do with his job? He was appointed to carry out the agenda of the right wing, and he is supposed to be partisan.

When we finally get around to cleaning up the Supreme Court, he will be the first justice to go.

Posted by: PTate in MN on March 27, 2006 at 12:47 PM | PERMALINK

"FF: Are you suggesting that Kevin Drum is a moronic conservative nutjob? Because those are the only people who make that kind of statement."

I am sure liberals can spin siding with the terrorist as being patriotic.

Posted by: Freedom Fighter on March 27, 2006 at 12:50 PM | PERMALINK

"When we finally get around to cleaning up the Supreme Court, he will be the first justice to go."

If the Dems ever recapture power, will you guys send Scalia to Gitmo?

Posted by: Freedom Fighter on March 27, 2006 at 12:51 PM | PERMALINK

"When we finally get around to cleaning up the Supreme Court, he will be the first justice to go."

"Cleaning up" the Supreme Court. What's that a euphemism for?

Supreme Court appointments are lifetime appointments. Scalia is relatively young, and shows no sign of wishing to retire any time soon.

Posted by: floop on March 27, 2006 at 12:52 PM | PERMALINK

cmdicely:
although I agree with your general analysis, I should note that:
"It is very clearly a general legal issue; they clearly stated that the death penalty was per se unconstitutional." arguably this showed a certain amount of constitutional contempt on their part...since the Constitution clearly references capital crimes.

saxonslug:

a judge never has to recuse him or herself merely because they have a family member who works at a law firm involved in a dispute before that judge. law firms employ Chinese fire walls and similar mechanisms all the time in order to avoid conflict of interest questions.

Posted by: Nathan on March 27, 2006 at 12:53 PM | PERMALINK

Its not all because Scalia couldn't keep his mouth shut. If he recuses, he's done the right thing given that he is prejudiced on this. If he doesn't recuse its because he's done the wrong thing. What is horrible is that there's a good chance we only know its an issue because he can't keep his mouth shut.

Posted by: benton on March 27, 2006 at 12:54 PM | PERMALINK

Freedom Fighter,

The issue here is whether we know for sure whether all the detainees at Guantanamo are really terrorists. Check out what I linked to in an earlier comment. Many of the detainees were not captured on the battlefield, and it's quite possible some of them were framed.

Posted by: Foo Bar on March 27, 2006 at 12:56 PM | PERMALINK

Supreme Court appointments are lifetime appointments. Scalia is relatively young, and shows no sign of wishing to retire any time soon.

They can be impeached, just like the President. And just as soon as Bush, Cheney, Rumsfeld, Cambone, Yoo, Gonzalez, and a few others are safely locked up in Federal Prison, we can turn to the Supreme Court. Scalia and Thomas need to be impeached. That should keep Roberts and Alito in line.

I can dream, can't I?

Posted by: Freder Frederson on March 27, 2006 at 12:57 PM | PERMALINK
On a different note, if Scalia doesn't recuse himself despite showing an obvious conflict, would doing so be ground for impeachment?

If the House thought it did, then, yes, it would. Certainly its the kind of official abuse that is both dangerous to the Constitutional order and for which no other effective remedy exists.

OTOH, I wouldn't bet, after Hamdi, that this is going to be close enough that Scalia's refusal would swing it. While in Hamdi a bare majority found that detention was authorized under the AUMF, upholding the Court of Appeals here would take a far more far reaching finding that doesn't seem all that likely from this Court.

Even with the new appointees, and no recusals, I'd expect the Appeals Court ruling to be overturned, though perhaps on a 5-4 vote.

A Scalia recusal could, though, shift the manner in which the appeals court is overturned; with Scalia there, its more likely that his vote would be courted to get a broader consensus decision (and I would have expected, aside from this outburst, successfully) by a narrow ruling that that would require a competent tribunal to review his eligibility for EPW protection before he could be tried by commission, and not reach much further.

If Scalia recuses himself (or clearly stakes out an inflexible position of upholding the appeals Court in any case), I wouldn't be surprised for a stronger decision overturning the appeals court, perhaps striking the commissions, as constituted, entirely.

Posted by: cmdicely on March 27, 2006 at 12:57 PM | PERMALINK

If Scalia can pronounce judgement before he hears a case, why can't a nominee just answer a freakin question before the Judiciary Committee?

Scalia already knows that he is smarter than the other 8 justices combined and he won't even consider a recusal.

Posted by: tomeck on March 27, 2006 at 12:58 PM | PERMALINK

""Cleaning up" the Supreme Court. What's that a euphemism for?"

It means you send them where you'd send anyone who dissents with the leftist worldview... the Gulags.

Posted by: Freedom Fighter on March 27, 2006 at 1:00 PM | PERMALINK
Supreme Court appointments are lifetime appointments.

That's not what Article III says. "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour..."

Posted by: cmdicely on March 27, 2006 at 1:01 PM | PERMALINK

Scalia, sit this one out? Not a chance. His ego is too big for that.

Posted by: dahreese on March 27, 2006 at 1:02 PM | PERMALINK

"They can be impeached, just like the President. And just as soon as Bush, Cheney, Rumsfeld, Cambone, Yoo, Gonzalez, and a few others are safely locked up in Federal Prison, we can turn to the Supreme Court. Scalia and Thomas need to be impeached. That should keep Roberts and Alito in line.

I can dream, can't I?"

You mean, in your dream, Roberts and Alito would be allowed to stay on the court instead of being beheaded?

Posted by: Freedom Fighter on March 27, 2006 at 1:02 PM | PERMALINK

"They can be impeached, just like the President. And just as soon as Bush, Cheney, Rumsfeld, Cambone, Yoo, Gonzalez, and a few others are safely locked up in Federal Prison, we can turn to the Supreme Court. Scalia and Thomas need to be impeached."

Your impeachment fantasies are as crazy and irresponsible as those of right-wing nutters who call for impeachment every time a liberal justice makes a ruling they don't like.

Posted by: floop on March 27, 2006 at 1:03 PM | PERMALINK

"That's not what Article III says. "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour...""

That's right. Any deviation from the leftist worldview is obviously no "good behaviour"

Posted by: Freedom Fighter on March 27, 2006 at 1:03 PM | PERMALINK

You expect ethical decisions from a neo-con? Sorry, no recusal this time.

Posted by: James on March 27, 2006 at 1:03 PM | PERMALINK

Tomec,

If Scalia can pronounce judgement before he hears a case, why can't a nominee just answer a freakin question before the Judiciary Committee?

According to Sebastian Holsclaw there is some "rule" that prevents this. I've asked for clarification (I'm not saying no such rule exists, I just have never heard of it), but have as yet to see any.

Posted by: Edo on March 27, 2006 at 1:04 PM | PERMALINK

Will Scalia recuse himself following this blunder?

Ya sure, right after he falls on the sword for handing Junior the 2k election.

Posted by: jdm on March 27, 2006 at 1:07 PM | PERMALINK

"That's not what Article III says. "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour..."

It is universally acknowledged that Article III provides for lifetime appointments to the federal courts.

Posted by: floop on March 27, 2006 at 1:09 PM | PERMALINK

"It is very clearly a general legal issue; they clearly stated that the death penalty was per se unconstitutional."

False. Blackmun, for example, explicitly acknowleged the possibility that the death penalty could be applied constitutionally.

Posted by: floop on March 27, 2006 at 1:12 PM | PERMALINK

Hard to say what he will do, in the mean time ...He ain't so smart after all.

Posted by: Ben Merc on March 27, 2006 at 1:13 PM | PERMALINK
It is universally acknowledged that Article III provides for lifetime appointments to the federal courts.

Unless removed by impeachment; which makes the whole suggestion that, because they are "lifetime" appointments, any suggestion that the Supreme Court is to be cleaned up must be a euphemism for some unseemly plot is ludicrous.

Posted by: cmdicely on March 27, 2006 at 1:13 PM | PERMALINK

"It means you send them where you'd send anyone who dissents with the leftist worldview... the Gulags."

Yeah in Siberia.

Posted by: Lurker42 on March 27, 2006 at 1:19 PM | PERMALINK

I am sure liberals can spin siding with the terrorist as being patriotic.
Freedom Fighter on March 27, 2006 at 12:50 PM

Guess that'd be fair, seeing as how conservatives have already spun acting like terrorists as being patriotic.

Posted by: snark on March 27, 2006 at 1:23 PM | PERMALINK

Recuse me, but Justice Stevens is on the record on many occassions as stating since he was appointed by a Republican President (Ford) he will retire under a republican president. At 83 and the elder how soon until Justice Stevens retires and George W. gets to appoint numer 3?

Posted by: daveyo on March 27, 2006 at 1:25 PM | PERMALINK

Scalia will not recuse himself for the simple reason that he thinks the ethical canon or rule that allegedly prevents judges from speaking on issues of the day is complete bs. Impartiality doesn't mean he won't have any preconceived notions, or that he can't express such notions.

Besides, we already know how he's gonna vote. He didn't think the habeas statute granted jurisdiction in the first place(Rasul), so he certainly won't object to Congress limiting jursidiction

Posted by: Phil on March 27, 2006 at 1:25 PM | PERMALINK

"Even Supreme Court justices are susceptible to peer pressure . . ."

Dream on, Kevin. After Bush vs. Gore, there is no such thing as peer pressure among that group.

Besides, Scalia sees his "peers" as being John Yoo, our beloved AG and the Federalist Society.

And you know what they've said to him about recusing himself.

Posted by: fbg46 on March 27, 2006 at 1:25 PM | PERMALINK

scalia will not recuse himself. so far as i know, no means exists to force him to do so.

i wonder how often the justices have their minds at least mostly made up before they hear the arguments of various cases. i suspect that fairly often, a justice will have prejudged a case and would be a hard sell for the "other side." they just don't yak about it beforehand.

Posted by: Brian on March 27, 2006 at 1:25 PM | PERMALINK

"Unless removed by impeachment; which makes the whole suggestion that, because they are "lifetime" appointments, any suggestion that the Supreme Court is to be cleaned up must be a euphemism for some unseemly plot is ludicrous."

"Cleaned up" most definitely sounds like a euphemism for an unseemly plot to get rid of justices you don't like.

If PTate meant impeachment, he should have said so, and described the alleged grounds for impeachment for each justice he seeks to remove in his "clean up."

Posted by: floop on March 27, 2006 at 1:26 PM | PERMALINK
Recuse me, but Justice Stevens is on the record on many occassions as stating since he was appointed by a Republican President (Ford) he will retire under a republican president. At 83 and the elder how soon until Justice Stevens retires and George W. gets to appoint numer 3?

As he hasn't yet at 83, I think he's decided to wait until the 2008 election is decided or die trying (or has abandoned that plan, even if he hasn't announced it.)

Posted by: cmdicely on March 27, 2006 at 1:30 PM | PERMALINK

Thank you for posting this story. I wish Scalia's son would have been captured by Iraqi insurgents, so we could find out Justice Scalia's thinking about the legality of international treaties, epecially the Geneva Conventions.

Posted by: Hostile on March 27, 2006 at 1:32 PM | PERMALINK

Actually Judge Stevens will turn 86 in less than a month. Who was the oldest still sitting, before they carried him off?


John Paul Stevens

http://www.oyez.org/oyez/resource/legal_entity/101/

Born: April 20, 1920
Party: Republican
Time served: 30 years, 3 months, 8 days
Position: associate Justice
Nominated by: Ford
Commissioned: December 17, 1975
Sworn in: December 19, 1975

Posted by: daveyo on March 27, 2006 at 1:34 PM | PERMALINK

We Want Harriet!

Posted by: Right minded on March 27, 2006 at 1:36 PM | PERMALINK

"I wish Scalia's son would have been captured by Iraqi insurgents ..."

Liberalism shows its true colors yet again....

You're the one who also said he thinks his parents are "murderers" because they supported the war, right?

Posted by: floop on March 27, 2006 at 1:37 PM | PERMALINK

Your impeachment fantasies are as crazy and irresponsible as those of right-wing nutters who call for impeachment every time a liberal justice makes a ruling they don't like.

No, there is good evidence that all the administration officials I mentioned have committed war crimes up to and including torture and illegal detention of non-combatants and innocent civilians (Rumsfeld has admitted to war crimes in press conferences).

I'll admit that impeaching Thomas is a stretch--being a complete jerk, an idiot, a hypocrite and having not one ounce of empathy is not a high crime or misdeameanor--but Scalia has committed many impeachable offenses, although I think the one that should stick is his refusal to recuse from the Cheney case.

Actually, I kind of feel sorry for Scalia. I never particularly liked the man or his judicial philosophy. But in the past, his behavior on and off the bench was rational and judicious. In recent years, he is behavior is just getting more and more bizarre. I really think he is suffering from some kind of dementia. The man just says too many outrageous things for a man in his position to think that he is fully in control of his mental facilities. He is becoming like Uncle Leo on Seinfeld.

Posted by: Freder Frederson on March 27, 2006 at 1:39 PM | PERMALINK

Dear Kevin,

Fuck You!

Yours in Christ,

Nino Scalia

Posted by: Antonin Scalia on March 27, 2006 at 1:41 PM | PERMALINK

Scalia has no peers. He will sit on that one with all his might.

Posted by: Hedley Lamarr on March 27, 2006 at 1:42 PM | PERMALINK

...the Gulags - now a wholly-owned subsidiary of the good 'ole US of A.

Posted by: ckelly on March 27, 2006 at 1:42 PM | PERMALINK

John Paul Stevens will likely retire or become incapacitated before the end of Bush's term.

Posted by: BigRiver on March 27, 2006 at 1:42 PM | PERMALINK

I'm getting hawt just thinking about Scalia's mouth. Too bad all of you are talking politics.

Scalia can recuse himself into my chamber anytime.

Posted by: Gannon the Man Cannon on March 27, 2006 at 1:43 PM | PERMALINK
but Justice Stevens is on the record on many occassions as stating since he was appointed by a Republican President (Ford) he will retire under a republican president.

How recently has Justice Stevens made such comments on the record? Has it been since the religious right wing litmus test has been imposed? Somehow I doubt it.

No litmus test you say? two words: Harriet Miers.

Posted by: Edo on March 27, 2006 at 1:44 PM | PERMALINK

John Paul Stevens will likely retire or become incapacitated before the end of Bush's term.

...and that's a promise!

Posted by: MountainDanny, Big River's enforcer on March 27, 2006 at 1:44 PM | PERMALINK

Antonin Scalia made it clear that he's already made up his mind on this case:

Can I be on the Supreme Court? I've already made up my mind about Bush...

Posted by: craigie on March 27, 2006 at 1:47 PM | PERMALINK

I am sure liberals can spin siding with the terrorist as being patriotic.

That's easy. It's called upholding the law. But we already know that the Bushies and their nutsack holders can spin breaking the law as patriotic.

Posted by: ogmb on March 27, 2006 at 1:48 PM | PERMALINK

I think Scalia has just given his answer:

U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics.

A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state.

"You know what I say to those people?" Scalia replied, making the obscene gesture and explaining "That's Sicilian."

The 20-year veteran of the high court was caught making the gesture by a photographer with The Pilot, the Archdiocese of Boston's newspaper.

"Don't publish that," Scalia told the photographer, the Herald said.

If you're the kinda guy who can flip the bird right after Communion, you're the kinda guy who probably won't do the right thing and recuse yourself.

Posted by: Windhorse on March 27, 2006 at 1:49 PM | PERMALINK

Going for a record?

Justice Stevens is only 4 years away from the all time record.
http://www.infoplease.com/ipa/A0875894.html

Oldest justice to serve: Oliver Wendell Holmes (retired at age 90)

Of course William H. Rehnquist made it to 82.

Who was the last president to appoint 3 supreme court justices?

Posted by: daveyo on March 27, 2006 at 1:49 PM | PERMALINK

Alls recent reviews of the material recently released by the govenment on the Gitmo detainees demonstrates that vast majority were NOT PICKED UP ON ANY BATTLEFIELD. They were ratted out in Pakistan by who knows whom for whatever reason, and delivered to the US forces or CIA for "detention"

That Scalia even repeats this canard about battlefields just demonstrates that Scalia is member in good standing of GOP/right wing megaphone. Just happens to hold a constitutional office in a different branch of government from Gonzales, and the other Bush minions passing out disinformation.

Good thing we a stalwart Congress upholding the separation of powers.

Posted by: Ned on March 27, 2006 at 1:51 PM | PERMALINK

Holy cow, Wind! Freder, I thought your post about Scalia's possible dementia was just wishful thinking (I had him down for the less complex Arrogant Mothah Syndrome), but you may well be right!

Posted by: shortstop on March 27, 2006 at 1:54 PM | PERMALINK

This would also apply to Supreme Court nominees during their Senate confirmation hearings, right?

Posted by: Edo

One would have thought. Apparently it is all right to tell people at the University of Freiburg in Switzerland what he thinks but not the Senate of the United States.

Posted by: anandine on March 27, 2006 at 1:58 PM | PERMALINK

Is it published anywhere? Clearly he doesn't seem to respect the 1st Ammendment to the US Constitution.

Posted by: Edo on March 27, 2006 at 2:03 PM | PERMALINK

"The issue here is whether we know for sure whether all the detainees at Guantanamo are really terrorists."

My comment wasn't about that. I just thought it was quite telling when Kevin stated that the court would rule in favor of the combatants if the court were to lose two conservative judges.

Posted by: Freedom Fighter on March 27, 2006 at 2:03 PM | PERMALINK

"That's easy. It's called upholding the law."

It's funny listening to liberals talk about upholding the law and at the same time sending those who disagree with them to prison. LOL.

Posted by: Freedom Fighter on March 27, 2006 at 2:05 PM | PERMALINK

So Scalia's mouth has now been joined by Scalia's finger.

Let's hope it stops there.

Posted by: frankly0 on March 27, 2006 at 2:10 PM | PERMALINK

My comment wasn't about that. I just thought it was quite telling when Kevin stated that the court would rule in favor of the combatants if the court were to lose two conservative judges.

Freedom Fighter,

You're wrong. Nothing Kevin himself wrote (in contrast to the quotes from Scalia) refers specifically to combatants as opposed to detainees, a more general term which could easily include those snatched and framed in Pakistan.

So your assertion that Kevin is siding with those who have been uncontroversially established as terrorists is incorrect.


Posted by: Foo Bar on March 27, 2006 at 2:15 PM | PERMALINK

So many commenters insisting Scalia would never recuse himself VS the one who remembers Scalia did recuse himself for the Newdow case on the Pledge of Allegiance, for shooting off his mouth.

Posted by: Grumpy on March 27, 2006 at 2:15 PM | PERMALINK

It's funny listening to liberals talk about upholding the law and at the same time sending those who disagree with them to prison.

Well, better than the conservatives who think they're above the law, and the gullable shills who apologize for them. But what "prison" are liberals sending people to? Guantanamo? Abu Graib? I'm not sure if you realize this or not, but Bush isn't a liberal. Keep working at it, though.

Posted by: DH Walker on March 27, 2006 at 2:15 PM | PERMALINK

Let's hope it stops there.

"The Fuck You Stops Here," eh?

Not that it has anything to do with what a towering ass he is, but Nino appears to have gained about 100 pounds in the past several years. I heard him sneer--er, speak--in, I think, '03, and he's certainly expanded his presence since then. Too many complimentary hors d'oeuvres at the conflict-of-interest duck hunts?

Posted by: shortstop on March 27, 2006 at 2:16 PM | PERMALINK

I think this episode is most interesting when viewed in comparison and contrast with GOP statements about what is appropriate to ask during confirmation hearings to the Supreme Court.

The GOP line was that it was unethical under judicial cannons for judges to give their opinions about issues involving cases that might come before the court.

Here Scalia has given a forceful public opinion related to a case he knew was before the court to be argued in the near future. Is the GOP going to stick to its guns? If so they should criticize Scalia for his lapse in judicial ethics. Shouldnt they? Many conservative groups speaking out on the nomination process called questions unseemly and unethical where involving cases potentially before the court. Now, silence.

Or will they say this is different without saying why, and that this "rule" would change anyway the next time a Democrat is President.

Posted by: Catch22 on March 27, 2006 at 2:19 PM | PERMALINK

I'm not sure that Scalia ever had it, but if he did, can we agree that he has now lost it?

How many people do you know in positions of any authority would, in the presence of journalists, flip a bird in church?

There's a derangement there; I don't know how else to explain it.

Posted by: frankly0 on March 27, 2006 at 2:25 PM | PERMALINK

No recusal

(I`ll also put up a bottle of local wine for the bet...Kevin`s choice if I lose)

He is VERY, VERY Impeachable (given, of course, a rational Congress - ha ha !) as are the rest of those on the Bush v Gore 2000 majority roster

"...good behavior..." indeed

He HAS lost it mentally (as have several other so called "prominent" citizens - Hello Mr. 700 Club !) but no one seems to care; I do have to say that it IS impressive what the mental pressure of possibly getting caught & punished for wrong doing can do to people`s behavior

I would be honored to be flipped off by Mr. Sicilian; just follow the money folks !

"Eventually, the truth will emerge. And when it does, this house of cards, built of deceit, will fall." - Robert C. Byrd

[Condolences to Sen. Byrd BTW]

Posted by: daCascadian on March 27, 2006 at 2:26 PM | PERMALINK

Scalia Needs to Watch not only his mouth, but also his fingers.

Kevin, I think this story illustrates well why you are more than likely going to lose your bet.

Justice Scalia flips the finger in church

BOSTON, March 27 (UPI) -- U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics.

A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state.

"You know what I say to those people?" Scalia replied, making the obscene gesture and explaining "That's Sicilian."

The 20-year veteran of the high court was caught making the gesture by a photographer with The Pilot, the Archdiocese of Boston's newspaper.

"Don't publish that," Scalia told the photographer, the Herald said.

He was attending a special mass for lawyers and politicians at Cathedral of the Holy Cross, and afterward was the keynote speaker at the Catholic Lawyers' Guild luncheon.
Not only is Scalia not likely to recuse himself, but will most likely give the proverbial bird to any he suggest he should, much like he did when their were calls for him to recuse himself from a case involving Cheney given their duck hunting relationship.
http://writ.news.findlaw.com/dorf/20040324.html

Posted by: Catch22 on March 27, 2006 at 2:27 PM | PERMALINK

I predict he will not recuse himself.

Posted by: nightshift66 on March 27, 2006 at 2:28 PM | PERMALINK

During Judge Roberts committee hearings the vote at the end was the first time in U.S. history that the committee vote was based on straight party lines. Or said differently on all previous nominations by a democratic president the republican party had members of the committee vote for the other parties nominee.

Posted by: daveyo on March 27, 2006 at 2:29 PM | PERMALINK

Seriously, it's no bet unless we know the stakes.

I say this:

You have to post an entire day's worth of postings strongly in favor of censure.

If you win, we have to put up with a whole day of Amy Sullivan telling us how we are going to hell and we have to be polite to her.

Posted by: jerry on March 27, 2006 at 2:33 PM | PERMALINK

It's funny listening to liberals talk about upholding the law and at the same time sending those who disagree with them to prison.

Look, you even got internet access in your cell! Aren't we awfully nice to our political prisoners?

Posted by: ogmb on March 27, 2006 at 2:35 PM | PERMALINK

I read today that Scalia gave the finger to some reporter outside of mass the other day. Now this report that he shot his mouth off on a current case. Is he having mental problems? I know he is an arrogant SOB, but somethings no judge does, ever, not unless he is having problems. Maybe Scalia will be the next judge to retire.

Posted by: Ron Byers on March 27, 2006 at 2:38 PM | PERMALINK

Okay, here's my prediction (by no means certain, but I think its not unreasonable):

Scalia doesn't recuse himself.
The appeals court decision is overturned 5-3 in a decision which requires the government either to try Hamdan by court-martial or to, prior to trial, have a separate determination by a competent tribunal under the procedures laid-out in regulations on his EPW status.

Scalia and Thomas write separate dissenting opinions; Scalia's is more angryin tonebut in substance more narrowly applicable to the particular circumstances. Thomas's is calmer in tone, but embraces a far more expansive power of the President in regard to defining and punishing "crimes" in wartime by military order. Alito also dissents, either writing separately or joining one of the other two, though I won't predict which one.

Posted by: cmdicely on March 27, 2006 at 2:44 PM | PERMALINK

Someone who flips a bird in church is, I think, what Italian-Americans call a cafone.

Posted by: frankly0 on March 27, 2006 at 2:48 PM | PERMALINK

Definition of a cafone.

Posted by: frankly0 on March 27, 2006 at 2:51 PM | PERMALINK

So many commenters insisting Scalia would never recuse himself VS the one who remembers Scalia did recuse himself for the Newdow case on the Pledge of Allegiance, for shooting off his mouth.

Posted by: Grumpy

Thank you Grumpy. I'm glad someone is reading; and thinking.

Posted by: David in NY on March 27, 2006 at 2:52 PM | PERMALINK

Scalia wants to be recused as an "F you" to the President, as he feels he should have been made Chief Justice. This is Scalia's payback for giving the seat to Roberts, who would have been plenty happy with being named an Associate Justice.

It shows why you shouldn't treat people as if they are in the bag. Scalia doesn't have to violate his beliefs to stick it to the administration; he just needed to be loud and clear about them.

Posted by: Dismayed Liberal on March 27, 2006 at 2:54 PM | PERMALINK

Has Scalia ever recused himself? My recollection says no. We can only rely on any justice's integrity and judgment in doing so. We knew before his hunting trip with Cheney that the SC as a 'last resort for justice, fairness and equity' was a joke when they entered and decided the 2000 election.

Our government is broken in many different areas, and there appears to be nobody in either the Ds or the Rs willing to declare this puppy dead. We keep getting more evidence, followed by shock and outrage, much chatter, and then shrugs and acceptance, "What can we do about it?"

Let's be candid about this: We're all full of it. We just talk, talk, talk, but don't act.

I don't know what your local newspaper had above the fold this morning, but mine has photos of thousands of immigrants waving Mexican flags and marching on the town square to protest the Congress' imminent legislation criminalizing illegal immigrants and anybody offering them humanitarian aid. I can't help but think about what might happen if we stopped blogging, turned off our computers and marched against everything that Bush and the Republicans have done to us and this country the last 6 years.

Everything that we bitch about on these blogs are our own damned fault. It looks to me as if we like bitching and complaining more than we hate what we're bitching and complaining about.

Posted by: Mike on March 27, 2006 at 3:01 PM | PERMALINK

Sounds like Scalia has been hanging out with Dick "Go **** yourself" Cheney.

But then, we knew that.

Posted by: S Ra on March 27, 2006 at 3:03 PM | PERMALINK
Has Scalia ever recused himself?

Yes, as noted a couple times above, he did so in the Newdow "Pledge of Allegiance" case, where he similarly shot off his mouth.

Of course, the Court rather predictably dodged the merits in that case, and its not clear that Scalia would do the same thing on an issue that was controversial, and which might reasonably be expected to face a close decision on the merits.

Posted by: cmdicely on March 27, 2006 at 3:05 PM | PERMALINK

Mike great insight. Unplug and go do something. I am very active currently in 7 races. There is no candidate that has out worked us in our past 33 races and we have only lost 1 by 5 votes. That really is the key, nothing is more impressive today than someone actually coming to their door and asking for their vote. We have mostly done r's races and a few conservative d's. In addition it also seems that for all of the complaining there still is no one leading the charge for the change. so good luck and get going.

Posted by: daveyo on March 27, 2006 at 3:12 PM | PERMALINK

I think Charlie has stolen floop's moniker. I don't recall floop posting rabid right wing drivel before.

Posted by: Dr. Morpheus on March 27, 2006 at 3:28 PM | PERMALINK

Dr. Morpheus:

Well, floop never posts as "floop," always as floopmeister ... and he's Aussie.

Maybe "floop" has one of those Oz-exclusive meanings like jumbuck or Vegemite sandwitch :)

Bob

Posted by: rmck1 on March 27, 2006 at 3:34 PM | PERMALINK

Nino is unfit and the world knows it.
The US Supreme Court is not as noble as it used to be.
Thomas is also unfit. But everyone knows that too.

Posted by: Nemesis on March 27, 2006 at 3:36 PM | PERMALINK

Suckers.

Kevin has given himself a can't-lose position by saying he thinks Scalia will recuse.

If Scalia recuses, Kevin says, "Whadya know? I was right."

If Scalia doesn't recuse, Kevin says, "Wow, I gave Scalia the benefit of the doubt but he's a real slimeball after all."

Elegantly played, Kev.

Posted by: Quaker in a Basement on March 27, 2006 at 3:42 PM | PERMALINK

Nino would be well advised to cut back on the drinky winkys.

Posted by: penalcolony on March 27, 2006 at 5:29 PM | PERMALINK

"No, there is good evidence that all the administration officials I mentioned have committed war crimes up to and including torture and illegal detention of non-combatants and innocent civilians (Rumsfeld has admitted to war crimes in press conferences)."

Do keep us apprised of your progress in putting them on trial for their--cough, cough--"war crimes."

Posted by: floop on March 27, 2006 at 5:38 PM | PERMALINK

guess you missed scalias finger flipping at the church eh?
Rawstory.com

'sicilian' he says

Posted by: Hamster Brain on March 27, 2006 at 6:03 PM | PERMALINK

Justice Scalia flips the finger in church

BOSTON, March 27 (UPI) -- U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics.

A Boston Herald reporter asked the 70-year-old conservative Roman Catholic if he faces much questioning over impartiality when it comes to issues separating church and state.

"You know what I say to those people?" Scalia replied, making the obscene gesture and explaining "That's Sicilian."

The 20-year veteran of the high court was caught making the gesture by a photographer with The Pilot, the Archdiocese of Boston's newspaper.

"Don't publish that," Scalia told the photographer, the Herald said.

He was attending a special mass for lawyers and politicians at Cathedral of the Holy Cross,

So Much for the 'moral majority' meme.

Posted by: Hamster Brain on March 27, 2006 at 6:06 PM | PERMALINK

You're the one who also said he thinks his parents are "murderers" because they supported the war, right?

Correct. In a democracy the people are responsible for the actions of their government, which makes every US citizen a murderer in regards to the illegal invasion and occupation of Iraq, including the few of us who opposed it.

However, I do not represent 'liberals' or 'liberal' ideology and I only wanted Scalia's little boy captured by Iraqi insurgents to find out the Justice's opinion on whether or not prisoners of war should be treated as the Geneva Conventions stipulate. It is really a double bind for the mafia bastard. The Scaly Dog wants to torture enemy combatants, but he would also want his precious little boy to be treated civilly, as determined by the Geneva Conventions.

How does a Scicilian immigrant become a NYC judge? The Scaly Dog's father had to be mafiosi.

Posted by: Hostile on March 27, 2006 at 6:44 PM | PERMALINK

shortstop,

Hostile just called you a murderer.

Posted by: floop on March 27, 2006 at 6:52 PM | PERMALINK

From the Confirmation Testimony of Hon. Antonin Scalia, To Be U.S. Supreme Court Justice (August 5, 1986, page 44):

Senator Mathias: "...if a reasonable litigant actually believed that your judgment would be distorted because of some strong personal bias or belief, would that dissuade you from sitting on a case?"

Judge Scalia: I think the statute reads that way, Senator. I have the statute somewhere. I am quite sure that the way you put it is about the way the statute reads, requiring disqualification. If I may, title 28, United States Code, section 455: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Posted by: Bug on March 27, 2006 at 7:00 PM | PERMALINK

whoops...Scalia didn't give anyone the finger.

http://www.cnn.com/2006/LAW/03/27/scalia.gesture.ap/index.html

Posted by: Nathan on March 27, 2006 at 7:30 PM | PERMALINK

If Kevin Drum really thinks this issue is not as settled as Scalia claims it is Kevin Drum should explain how it was unjust for the US not to grant trials to any POW's in past wars. My grandfather, for example, was captured on a battlefield and held for nearly two years in an American prison camp without any possibility of trial during WWII. Was this wrong? Is my family owed money for this injustice? Please explain Kevin Drum.

Posted by: Murf on March 27, 2006 at 7:57 PM | PERMALINK

shortstop, Hostile just called you a murderer.

Hey there, Charlie.

Wanna go fuck yourself? It's about that time.

Posted by: YELLOW in front, BROWN in back on March 27, 2006 at 8:33 PM | PERMALINK

Yellow,

Do you agree with Hostile that shortstop is a murderer?

Posted by: floop on March 27, 2006 at 8:58 PM | PERMALINK

Latest I hear is that Scalia didn't give the finger, but instead a flipping of the hand from beneath the chin.

This in fact isn't really anything like an obscene gesture. I've seen Italian Granmas of impeccable manners use it at family gatherings (on the other hand they were pretty pissed).

And it IS distinctively Italian -- maybe Sicilian, since all the Granmas I know who used it were Sicilian.

On the other hand, if I were a Supreme Court Judge, and wanted to maintain an image of possessing a judicial temperament, I don't think that the gesture exactly engenders the right effect.

Posted by: frankly0 on March 27, 2006 at 9:35 PM | PERMALINK

Why should he excuse himself? If you look at Ginsburg record on politics, she should leave every case on women's rights.


Posted by: McA on March 27, 2006 at 9:39 PM | PERMALINK

Scalia lacks the judicial temperament.

Posted by: Nancy Irving on March 28, 2006 at 2:28 AM | PERMALINK

Scalia won't, and shouldn't recuse himself. He has already expressed similiar opinions in other Supreme Court decisions, and therefore there is no real grounds for recusal, as all judges have their opinions. :)

Posted by: Tymbrimi on March 28, 2006 at 4:21 AM | PERMALINK

I guess Bush's comments when he's promoting "democracy" (whatever that term really means for conservatives) that American freedoms should be available for everybody, not just Americans, should have consulted Scalia first.

Tymbrimi: Scalia won't, and shouldn't recuse himself.

The opinion of an ass such as yourself holds little sway.

There is a difference between holding an opinion and expressing one.

That you do not understand this and choose to ignore the ethics that govern judges in our nation is no surprise.

Posted by: Advocate for God on March 28, 2006 at 9:48 AM | PERMALINK

Hostile, Hostile just called you a murderer.

Posted by: floop on March 28, 2006 at 11:01 AM | PERMALINK

Scalia didn't recuse himself, even though five retired generals who supported the Hamdan case wrote him and asked him to.

Ok, who owes wine to whom?

Posted by: Windhorse on March 28, 2006 at 1:45 PM | PERMALINK


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