Commentary Magazine


Topic: law school

On the Offense Against Israel’s Delegitimizers

A pro-Israel activist passes on this transcript of “the most brilliantly audacious defence of Israel since Moses parted the Red Sea.” The topic is whether Israel is a “rogue” state. The defense emphatically replies: it sure is. The key to the argument is reminding Israel’s critics as to the precise meaning of rogue — “The Oxford English Dictionary defines rogue as ‘aberrant, anomalous; misplaced, occurring (esp. in isolation) at an unexpected place or time,’ while a dictionary from a far greater institution gives this definition: ‘behaving in ways that are not expected or not normal, often in a destructive way.'”

So if you want “rogue” — how about this:

The IDF sends out soldiers and medics to patrol the Egyptian border. They are sent looking for refugees attempting to cross into Israel. Not to send them back into Egypt, but to save them from dehydration, heat exhaustion, and Egyptian bullets.

Compare that to the U.S.’s reaction to illegal immigration across their border with Mexico. The American government has arrested private individuals for giving water to border crossers who were dying of thirst — and here the Israeli government is sending out its soldiers to save illegal immigrants. To call that sort of behaviour anomalous is an understatement.

Or how about this:

Another part of the dictionary definition is behaviour or activity “occurring at an unexpected place or time.” When you compare Israel to its regional neighbours, it becomes clear just how roguish Israel is. And here is the fourth argument: Israel has a better human rights record than any of its neighbours. At no point in history, has there ever been a liberal democratic state in the Middle East — except for Israel. Of all the countries in the Middle East, Israel is the only one where the LGBT community enjoys even a small measure of equality.

In Kuwait, Lebanon, Oman, Qatar, and Syria, homosexual conduct is punishable by flogging, imprisonment, or both. But homosexuals there get off pretty lightly compared to their counterparts in Iran, Saudi Arabia, and Yemen, who are put to death. Israeli homosexuals can adopt, openly serve in the army, enter civil unions, and are protected by exceptionally strongly worded ant-discrimination legislation. Beats a death sentence. In fact, it beats America.

The speaker is a 19-year-old Cambridge University law student. Perhaps he should forget about law school and run the Israel government’s press operation. It seems he has figured out the key to combating Israel’s delegitimizers: go on the offense.

A pro-Israel activist passes on this transcript of “the most brilliantly audacious defence of Israel since Moses parted the Red Sea.” The topic is whether Israel is a “rogue” state. The defense emphatically replies: it sure is. The key to the argument is reminding Israel’s critics as to the precise meaning of rogue — “The Oxford English Dictionary defines rogue as ‘aberrant, anomalous; misplaced, occurring (esp. in isolation) at an unexpected place or time,’ while a dictionary from a far greater institution gives this definition: ‘behaving in ways that are not expected or not normal, often in a destructive way.'”

So if you want “rogue” — how about this:

The IDF sends out soldiers and medics to patrol the Egyptian border. They are sent looking for refugees attempting to cross into Israel. Not to send them back into Egypt, but to save them from dehydration, heat exhaustion, and Egyptian bullets.

Compare that to the U.S.’s reaction to illegal immigration across their border with Mexico. The American government has arrested private individuals for giving water to border crossers who were dying of thirst — and here the Israeli government is sending out its soldiers to save illegal immigrants. To call that sort of behaviour anomalous is an understatement.

Or how about this:

Another part of the dictionary definition is behaviour or activity “occurring at an unexpected place or time.” When you compare Israel to its regional neighbours, it becomes clear just how roguish Israel is. And here is the fourth argument: Israel has a better human rights record than any of its neighbours. At no point in history, has there ever been a liberal democratic state in the Middle East — except for Israel. Of all the countries in the Middle East, Israel is the only one where the LGBT community enjoys even a small measure of equality.

In Kuwait, Lebanon, Oman, Qatar, and Syria, homosexual conduct is punishable by flogging, imprisonment, or both. But homosexuals there get off pretty lightly compared to their counterparts in Iran, Saudi Arabia, and Yemen, who are put to death. Israeli homosexuals can adopt, openly serve in the army, enter civil unions, and are protected by exceptionally strongly worded ant-discrimination legislation. Beats a death sentence. In fact, it beats America.

The speaker is a 19-year-old Cambridge University law student. Perhaps he should forget about law school and run the Israel government’s press operation. It seems he has figured out the key to combating Israel’s delegitimizers: go on the offense.

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Arizona Immigration Law Hearing

This account by the Washington Post of the 9th Circuit hearing on the Arizona immigration law is revealing on a number of counts.

Judge John T. Noonan (whose own exacting questioning I experienced in law school some years back) didn’t think much of the Obama administration’s advocacy skills:

“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. … You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. … I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

That doesn’t mean the government doesn’t have other viable arguments in its attempt to overturn the Arizona law or that this issue is going to be settled by the 9th Circuit. (Certainly it’s headed for the Supreme Court.) But it does mean that the Obama Justice Department is doing a poor job of litigating.

Even more telling is this passage from the Post‘s report:

With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law.

What?! This is the wise Latino school of thought, the suggestion that these justices would vote their ethnicity rather than their conscience. The Post digs up a supposed scholar whom I’ve never heard of to opine: “‘Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,’ said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.” Perhaps Hellman’s students should disregard the chazzerai they are being taught.

This account by the Washington Post of the 9th Circuit hearing on the Arizona immigration law is revealing on a number of counts.

Judge John T. Noonan (whose own exacting questioning I experienced in law school some years back) didn’t think much of the Obama administration’s advocacy skills:

“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. … You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. … I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

That doesn’t mean the government doesn’t have other viable arguments in its attempt to overturn the Arizona law or that this issue is going to be settled by the 9th Circuit. (Certainly it’s headed for the Supreme Court.) But it does mean that the Obama Justice Department is doing a poor job of litigating.

Even more telling is this passage from the Post‘s report:

With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law.

What?! This is the wise Latino school of thought, the suggestion that these justices would vote their ethnicity rather than their conscience. The Post digs up a supposed scholar whom I’ve never heard of to opine: “‘Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,’ said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.” Perhaps Hellman’s students should disregard the chazzerai they are being taught.

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Obama Out of Steam

No one can hold a candle to Obama when it comes to whining and self-pity. He’s been misunderstood, he says. His opponents are so, well, oppositional. The media is insistent on getting answers and bothering him all the time. The public is not thinking straight. And so it goes.

Mickey Kaus considers Obama’s outbursts against the electorate to be “a form of political malpractice—making yourself look good to supporters, and to history, and to yourself, at the expense of the fellow Dems who are on the ballot.” But this is vintage Obama. It is always about him and his inability to reconcile his own self-image with the results he has achieved and the reaction he engenders. As Kaus observes:

We thought he was a great salesman. He turned out to be a lousy salesman. We thought he was a great politician. Instead he makes elementary mistakes and doesn’t learn from them. He didn’t know “shovel-ready” from a hole in the ground, and then somehow thinks admitting this ignorance without apology will add to his appeal.

As hard as it is for his supporters to accept this, it is even harder for Obama to recognize his own shortcomings. Instead, he tried hollering at the Republicans. Then he hollered at his supporters. And now he’s just moping:

Mindful that some of his early supporters are feeling deflated, President Obama offered a frank admission Sunday that the sour economy has made it tough for Democrats to retain the buoyant sense of optimism touched off by his election victory nearly two years ago. … “I know there are times when probably it’s hard to recapture that sense of possibility,” Obama said, recalling the night of his election victory. “It’s hard sometimes to say, ‘Yes we can.’ You sit thinking, ‘You know, maybe. I don’t know.’ It’s not as inspiring a slogan.”

But then he reverts to partisan sniping, at times sounding rather loopy:

He swiped repeatedly at Republicans, invoking Abraham Lincoln at one point and positing that the 16th president would have trouble winning the Republican nomination if he were a candidate today.

Because the modern GOP is in favor of slavery? Because, well … oh forget it. Even his insults are incoherent these days.

Obama has proved to be weak in a crisis, as Juan Williams candidly observed in June. He’s wasn’t up to the BP oil spill or terrorist attacks. And he’s not very good at managing his own political crisis. I suppose teaching law school, perpetually running for higher office, and writing semi-fictional books about himself weren’t the best preparation for the presidency.

No one can hold a candle to Obama when it comes to whining and self-pity. He’s been misunderstood, he says. His opponents are so, well, oppositional. The media is insistent on getting answers and bothering him all the time. The public is not thinking straight. And so it goes.

Mickey Kaus considers Obama’s outbursts against the electorate to be “a form of political malpractice—making yourself look good to supporters, and to history, and to yourself, at the expense of the fellow Dems who are on the ballot.” But this is vintage Obama. It is always about him and his inability to reconcile his own self-image with the results he has achieved and the reaction he engenders. As Kaus observes:

We thought he was a great salesman. He turned out to be a lousy salesman. We thought he was a great politician. Instead he makes elementary mistakes and doesn’t learn from them. He didn’t know “shovel-ready” from a hole in the ground, and then somehow thinks admitting this ignorance without apology will add to his appeal.

As hard as it is for his supporters to accept this, it is even harder for Obama to recognize his own shortcomings. Instead, he tried hollering at the Republicans. Then he hollered at his supporters. And now he’s just moping:

Mindful that some of his early supporters are feeling deflated, President Obama offered a frank admission Sunday that the sour economy has made it tough for Democrats to retain the buoyant sense of optimism touched off by his election victory nearly two years ago. … “I know there are times when probably it’s hard to recapture that sense of possibility,” Obama said, recalling the night of his election victory. “It’s hard sometimes to say, ‘Yes we can.’ You sit thinking, ‘You know, maybe. I don’t know.’ It’s not as inspiring a slogan.”

But then he reverts to partisan sniping, at times sounding rather loopy:

He swiped repeatedly at Republicans, invoking Abraham Lincoln at one point and positing that the 16th president would have trouble winning the Republican nomination if he were a candidate today.

Because the modern GOP is in favor of slavery? Because, well … oh forget it. Even his insults are incoherent these days.

Obama has proved to be weak in a crisis, as Juan Williams candidly observed in June. He’s wasn’t up to the BP oil spill or terrorist attacks. And he’s not very good at managing his own political crisis. I suppose teaching law school, perpetually running for higher office, and writing semi-fictional books about himself weren’t the best preparation for the presidency.

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The Problem with Law Schools

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

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Biden Strikes Again

Joe Biden says many dumb things, but this, on Elena Kagan’s opposition to military recruiters on campus, is up there with the worst of them:

She was right. … All during that period, she has reached out to veterans in the law school, she has been at promotions ceremonies, she’s recognized veterans coming to the law school. So this is not a single bit of anti-military bias. She does think, and I agree with her, that the “Don’t Ask, Don’t Tell” policy is a very bad policy.

This is inane on multiple levels. First, she wasn’t “right” — there was a law that allowed recruiters on campus, and the Supreme Court decided that she was wrong in an 8-0 decision. Moreover, if it were such a bad policy, why didn’t he or then-Senator Barack Obama move to repeal “Don’t Ask, Don’t Tell”? And, come to think of it, if it’s so bad, why doesn’t Obama issue an executive order to repeal it? Finally, it’s hard to argue that there wasn’t at least a bit of anti-military in her pronouncement:

“All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy. … The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “… the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Unfortunately, unlike vice presidents, judges and judicial nominees are judged on the precision of their words. Kagan’s got some explaining to do, and Biden isn’t helping her any.

Joe Biden says many dumb things, but this, on Elena Kagan’s opposition to military recruiters on campus, is up there with the worst of them:

She was right. … All during that period, she has reached out to veterans in the law school, she has been at promotions ceremonies, she’s recognized veterans coming to the law school. So this is not a single bit of anti-military bias. She does think, and I agree with her, that the “Don’t Ask, Don’t Tell” policy is a very bad policy.

This is inane on multiple levels. First, she wasn’t “right” — there was a law that allowed recruiters on campus, and the Supreme Court decided that she was wrong in an 8-0 decision. Moreover, if it were such a bad policy, why didn’t he or then-Senator Barack Obama move to repeal “Don’t Ask, Don’t Tell”? And, come to think of it, if it’s so bad, why doesn’t Obama issue an executive order to repeal it? Finally, it’s hard to argue that there wasn’t at least a bit of anti-military in her pronouncement:

“All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy. … The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “… the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Unfortunately, unlike vice presidents, judges and judicial nominees are judged on the precision of their words. Kagan’s got some explaining to do, and Biden isn’t helping her any.

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Sage Advice for Obama: First Do No Harm on Middle East

From an unlikely publication (Huffington Post) and from unlikely sources (a Wharton professor and a negotiations “expert”) comes some generally sound advice for Obama on the Palestinian conflict. The article recommends that Obama:

1. Avoid proposing simple solutions to complex problems. Look for causal linkages, not just proximity. Stopping movie downloads won’t stop the rain, and stopping the construction of new settlements won’t end centuries of misunderstanding and grievances.

2. Work with these linkages and with the situation as it is, not as he would want it to be. For example, if the Palestinians think they can get all of Palestine just by waiting, President Obama needs to create a better option, either by making it clear that they cannot just wait, or by offering them something they cannot get just by waiting.

3. Understand the complexity of the problem as it is. Making a problem undiscussable does not make the problem go away. President Obama seems to believe that use of phrases like “radical Islam” suggests Americans view Islamic states as terrorists and that the phrase should be banished; actually, this phrase suggests that the United States does make important distinctions between violent terrorists and others who disagree with us strongly but express this through different means. But denying the existence of radicals does not make them or their grievances go away. As long as the Islamic world feels it has real grievances, then palliatives, as expensive as they may be for the Israelis, are not a real solution. And as long as there are Islamic radicals there will be threats to the West, some of them quite severe. While some of these grievances and the problems they create may require real concessions from the West, others may require a truly forceful, even violent military response instead.

4. Above all, President Obama should do no harm. Although this is a Medical School takeaway, not a law school one, it is worth mentioning in conclusion. The law of unintended consequences suggests that any time anyone adjusts a complex system, the results may be surprising. In this instance, we suspect that President Obama and the rest of the world would find the results of this stare-down with Israel disappointing as well.

I’ll take exception to the authors’ objection to the use of the phrase “radical Islam” (although they aptly note that Obama’s aversion to descriptions of our enemies amounts to foolish denial). However, they get to the root of Obama’s error in dealing with the Palestinian problem: he’s not operating in the real world. It’s no accident his Cairo speech zipped past 60 years of Palestinian rejectionism or that he avoids talking about Israel’s multiple offers of a Palestinian state — these are unpleasant facts at odds with his linkages and that suggest he is, at best, doing nothing productive and, at worst, making things worse.

It is ironic in the extreme that this is the “ideology is so yesterday” crowd. In fact, “ideology” in the worst sense of the word — and as the Obami intend it, as a dig at George W. Bush — is the insistence on seeing the world through dogmatic blinders, impervious to facts and reason. It is precisely what Obama is all about when it comes to the U.S.-Palestinian conflict and why he is dangerously not following the most important bit of advice — “do no harm.”

From an unlikely publication (Huffington Post) and from unlikely sources (a Wharton professor and a negotiations “expert”) comes some generally sound advice for Obama on the Palestinian conflict. The article recommends that Obama:

1. Avoid proposing simple solutions to complex problems. Look for causal linkages, not just proximity. Stopping movie downloads won’t stop the rain, and stopping the construction of new settlements won’t end centuries of misunderstanding and grievances.

2. Work with these linkages and with the situation as it is, not as he would want it to be. For example, if the Palestinians think they can get all of Palestine just by waiting, President Obama needs to create a better option, either by making it clear that they cannot just wait, or by offering them something they cannot get just by waiting.

3. Understand the complexity of the problem as it is. Making a problem undiscussable does not make the problem go away. President Obama seems to believe that use of phrases like “radical Islam” suggests Americans view Islamic states as terrorists and that the phrase should be banished; actually, this phrase suggests that the United States does make important distinctions between violent terrorists and others who disagree with us strongly but express this through different means. But denying the existence of radicals does not make them or their grievances go away. As long as the Islamic world feels it has real grievances, then palliatives, as expensive as they may be for the Israelis, are not a real solution. And as long as there are Islamic radicals there will be threats to the West, some of them quite severe. While some of these grievances and the problems they create may require real concessions from the West, others may require a truly forceful, even violent military response instead.

4. Above all, President Obama should do no harm. Although this is a Medical School takeaway, not a law school one, it is worth mentioning in conclusion. The law of unintended consequences suggests that any time anyone adjusts a complex system, the results may be surprising. In this instance, we suspect that President Obama and the rest of the world would find the results of this stare-down with Israel disappointing as well.

I’ll take exception to the authors’ objection to the use of the phrase “radical Islam” (although they aptly note that Obama’s aversion to descriptions of our enemies amounts to foolish denial). However, they get to the root of Obama’s error in dealing with the Palestinian problem: he’s not operating in the real world. It’s no accident his Cairo speech zipped past 60 years of Palestinian rejectionism or that he avoids talking about Israel’s multiple offers of a Palestinian state — these are unpleasant facts at odds with his linkages and that suggest he is, at best, doing nothing productive and, at worst, making things worse.

It is ironic in the extreme that this is the “ideology is so yesterday” crowd. In fact, “ideology” in the worst sense of the word — and as the Obami intend it, as a dig at George W. Bush — is the insistence on seeing the world through dogmatic blinders, impervious to facts and reason. It is precisely what Obama is all about when it comes to the U.S.-Palestinian conflict and why he is dangerously not following the most important bit of advice — “do no harm.”

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The Justices Should Stay Home

Justice Clarence Thomas, appearing at a Florida law school, made some interesting remarks about the Supreme Court’s decision striking down portions of the McCain-Feingold campaign-finance-reform law. The New York Times dutifully reports his jab, “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. … These are corporations.” And there was more:

“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

That’s as compelling and succinct an argument as you will get in defense of constitutional principles and the sanctity of political speech. Most interesting, perhaps, were his remarks on attending the State of the Union:

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

“One of the consequences,” he added in an apparent reference to last week’s address, “is now the court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.”

Regardless of how one feels about the Citizens United v. FEC case or Justice Sam Alito’s “not true” retort, it’s hard to disagree with that logic. There is good reason for the justices to stop showing up. This is a partisan affair in which the president lays out a political agenda and, at least in this case, swipes at the other branches of government. Why should judges feel obligated to sit there? Why would they even feel comfortable? And really, there is no purpose to be served by the judges sitting mutely (or not) as the president solicits cheers for health care or incurs boos for a budget freeze. These are justices and not political players, after all, although the line between political apparatchiks and judges is becoming unfortunately blurry these days.

The ABA Canon 4 of judicial ethics (which is the model for many state-bar ethics rules) states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Well, the State of the Union is not exactly political “activity” in the way that a campaign rally is, but it’s close and becomes more “interactive” each year. If the purpose of that rule is to maintain the divide between judges and politics and to avoid ensnaring judges in partisan brawls, then a good place to start would be for justices to follow Justice Thomas’s guidance. Really, they can watch it on TV.

Justice Clarence Thomas, appearing at a Florida law school, made some interesting remarks about the Supreme Court’s decision striking down portions of the McCain-Feingold campaign-finance-reform law. The New York Times dutifully reports his jab, “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. … These are corporations.” And there was more:

“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

That’s as compelling and succinct an argument as you will get in defense of constitutional principles and the sanctity of political speech. Most interesting, perhaps, were his remarks on attending the State of the Union:

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

“One of the consequences,” he added in an apparent reference to last week’s address, “is now the court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.”

Regardless of how one feels about the Citizens United v. FEC case or Justice Sam Alito’s “not true” retort, it’s hard to disagree with that logic. There is good reason for the justices to stop showing up. This is a partisan affair in which the president lays out a political agenda and, at least in this case, swipes at the other branches of government. Why should judges feel obligated to sit there? Why would they even feel comfortable? And really, there is no purpose to be served by the judges sitting mutely (or not) as the president solicits cheers for health care or incurs boos for a budget freeze. These are justices and not political players, after all, although the line between political apparatchiks and judges is becoming unfortunately blurry these days.

The ABA Canon 4 of judicial ethics (which is the model for many state-bar ethics rules) states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Well, the State of the Union is not exactly political “activity” in the way that a campaign rally is, but it’s close and becomes more “interactive” each year. If the purpose of that rule is to maintain the divide between judges and politics and to avoid ensnaring judges in partisan brawls, then a good place to start would be for justices to follow Justice Thomas’s guidance. Really, they can watch it on TV.

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Never Learn, Never Look Back

The Washington Post’s ombudsman Andrew Alexander devotes his weekly column to explaining how the Post‘s food critic is above reproach. Fine. Over the last few weeks we’ve been treated to columns on reporters’ conflicts of interest (no, nothing to see there, move along), another on anonymous sources, and one more on a biased book review. So where’s the heartfelt examination of the Post’s coverage of the Virginia gubernatorial race? Hmmm.

No self-examination was forthcoming, no discussion as to why dozens and dozens of stories were devoted to Bob McDonnell’s twenty-year-old college paper — an “issue” the voters cared not a wit about. Odd, isn’t it, that on the most obvious example of bias and excess the Post wouldn’t want to clear the air and take a look.

Instead, this week the Post doubled down, screaming for the governor-elect to denounce comments made by Pat Robertson about Muslims. No, Robertson isn’t in McDonnell’s transition team and isn’t going to be in his administration. The Post breathlessly observes: “In addition to attending law school in the 1980s at what was then called CBN University, the Virginia Beach school founded by Mr. Robertson and named for his Christian Broadcasting Network, Mr. McDonnell served eight years as a trustee of the same institution after it was renamed Regent University.” The Post editors proceed to holler: “Doesn’t Mr. McDonnell owe them and other Virginians some reassurance that he doesn’t share Pat Robertson’s despicable view?” Actually, no. McDonnell is under no obligation to denounce every comment by a supporter with which he disagrees; no more than Obama is expected to denounce every controversial comment a supporter of his makes.

But what is clear here is that the Post is not chastened, has not given up its habit of fomenting hot-button controversies where none exist, and holding Republicans to a standard that would never be employed against Democratic politicians. The Post hasn’t looked back and isn’t about to change its tune. But one thing we do know: the voters don’t much care what the Post prints. Those darn voters have a mind of their own and seemed to have figured out the Post’s gambit.

The Washington Post’s ombudsman Andrew Alexander devotes his weekly column to explaining how the Post‘s food critic is above reproach. Fine. Over the last few weeks we’ve been treated to columns on reporters’ conflicts of interest (no, nothing to see there, move along), another on anonymous sources, and one more on a biased book review. So where’s the heartfelt examination of the Post’s coverage of the Virginia gubernatorial race? Hmmm.

No self-examination was forthcoming, no discussion as to why dozens and dozens of stories were devoted to Bob McDonnell’s twenty-year-old college paper — an “issue” the voters cared not a wit about. Odd, isn’t it, that on the most obvious example of bias and excess the Post wouldn’t want to clear the air and take a look.

Instead, this week the Post doubled down, screaming for the governor-elect to denounce comments made by Pat Robertson about Muslims. No, Robertson isn’t in McDonnell’s transition team and isn’t going to be in his administration. The Post breathlessly observes: “In addition to attending law school in the 1980s at what was then called CBN University, the Virginia Beach school founded by Mr. Robertson and named for his Christian Broadcasting Network, Mr. McDonnell served eight years as a trustee of the same institution after it was renamed Regent University.” The Post editors proceed to holler: “Doesn’t Mr. McDonnell owe them and other Virginians some reassurance that he doesn’t share Pat Robertson’s despicable view?” Actually, no. McDonnell is under no obligation to denounce every comment by a supporter with which he disagrees; no more than Obama is expected to denounce every controversial comment a supporter of his makes.

But what is clear here is that the Post is not chastened, has not given up its habit of fomenting hot-button controversies where none exist, and holding Republicans to a standard that would never be employed against Democratic politicians. The Post hasn’t looked back and isn’t about to change its tune. But one thing we do know: the voters don’t much care what the Post prints. Those darn voters have a mind of their own and seemed to have figured out the Post’s gambit.

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The Candidates on Judges

So now we have a succinct view of how the presidential candidates would pick judges. (The New York Times obliges us here and here.) From Barack Obama:

. . . We need somebody who’s got the heart . . . the empathy to realize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old. And that’s going to be the criteria by which I’m going to be selecting my judges.

Obama’s words aren’t new. He set out these guidelines–where else–in a July 2007 speech to Planned Parenthood. Surely the Harvard-educated lawyer could come up with better than this to pass the pro-choice litmus test on judges.

His Yalie nemesis, Hillary Clinton, at least proffered “understand[ing] the role of precedent” and respect for “privacy” to explain what she’ll be looking for in her judicial picks: Here’s the nub of her criteria:

I will appoint well-qualified judges who really respect the Constitution and see it as the living document–which it is–that has given us the core of our values and freedoms for 225 years.

One can have an honest argument over Clinton’s criteria. But Obama’s litany is merely a list of liberal interest groups that he hopes to please.

John McCain–the only one who didn’t attend law school–seems to be the only one who believes that the law, as written, matters most. He said he’ll pick

jurists of the highest caliber, who know their own minds, and know the law, and know the difference.

Sounds about right.

So now we have a succinct view of how the presidential candidates would pick judges. (The New York Times obliges us here and here.) From Barack Obama:

. . . We need somebody who’s got the heart . . . the empathy to realize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old. And that’s going to be the criteria by which I’m going to be selecting my judges.

Obama’s words aren’t new. He set out these guidelines–where else–in a July 2007 speech to Planned Parenthood. Surely the Harvard-educated lawyer could come up with better than this to pass the pro-choice litmus test on judges.

His Yalie nemesis, Hillary Clinton, at least proffered “understand[ing] the role of precedent” and respect for “privacy” to explain what she’ll be looking for in her judicial picks: Here’s the nub of her criteria:

I will appoint well-qualified judges who really respect the Constitution and see it as the living document–which it is–that has given us the core of our values and freedoms for 225 years.

One can have an honest argument over Clinton’s criteria. But Obama’s litany is merely a list of liberal interest groups that he hopes to please.

John McCain–the only one who didn’t attend law school–seems to be the only one who believes that the law, as written, matters most. He said he’ll pick

jurists of the highest caliber, who know their own minds, and know the law, and know the difference.

Sounds about right.

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Hillary in SC

Most of the conversation about last night’s Democratic debate in South Carolina is about how strikingly personal and heated the exchanges were between Senators Clinton and Obama. It appears as if having to deal with the flood of false charges made by Bill Clinton is starting to agitate the young Senator from Illinois. Bill Clinton is an icon among many Democrats; he is also a promiscuous liar. Barack Obama is having to deal with both things.

But last night there were also two important moments on substantive issues. The first came when Joe Johns of CNN prefaced a question to Hillary Clinton this way: “Last week, U.S. military commanders on the ground in Iraq said that Baghdad is now 75 percent secured. There’s also important signs of political progress, including de-Baathification, which was basically long awaited. That, of course, was a big benchmark. Last week, you said the next president will, quote, ‘have a war to end in Iraq.’ In light of the new military and political progress on the ground there in Iraq, are you looking to end this war or win it?

Senator Clinton responded this way: “I’m looking to bring our troops home, starting within 60 days of my becoming president…”

This is about as clear as things can get. Hillary Clinton, when asked if she is looking to win the war, answered that she is looking to bring the troops home. She obviously believes victory is impossible and that her role as commander-in-chief would be to navigate an American loss in Iraq as quickly as possible. Given the security and political progress we’ve seen there in the last year and the consequences of losing in Iraq, her position is not only unwise; it is reckless. What is it that would drive Mrs. Clinton to delude herself into believing the United States has irredeemably lost a war in which we’re making remarkable and empirically demonstrable progress? And what additional evidence does the nation need that leading Democrats are invested in a narrative of defeat in Iraq – and they will stick with it regardless of the progress we make? This, in turn, gives rise to a third question: Will the American people elect a person for President who has an ideological stake in seeing America lose this war, which is itself part of an epic struggle against militant Islam?

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Most of the conversation about last night’s Democratic debate in South Carolina is about how strikingly personal and heated the exchanges were between Senators Clinton and Obama. It appears as if having to deal with the flood of false charges made by Bill Clinton is starting to agitate the young Senator from Illinois. Bill Clinton is an icon among many Democrats; he is also a promiscuous liar. Barack Obama is having to deal with both things.

But last night there were also two important moments on substantive issues. The first came when Joe Johns of CNN prefaced a question to Hillary Clinton this way: “Last week, U.S. military commanders on the ground in Iraq said that Baghdad is now 75 percent secured. There’s also important signs of political progress, including de-Baathification, which was basically long awaited. That, of course, was a big benchmark. Last week, you said the next president will, quote, ‘have a war to end in Iraq.’ In light of the new military and political progress on the ground there in Iraq, are you looking to end this war or win it?

Senator Clinton responded this way: “I’m looking to bring our troops home, starting within 60 days of my becoming president…”

This is about as clear as things can get. Hillary Clinton, when asked if she is looking to win the war, answered that she is looking to bring the troops home. She obviously believes victory is impossible and that her role as commander-in-chief would be to navigate an American loss in Iraq as quickly as possible. Given the security and political progress we’ve seen there in the last year and the consequences of losing in Iraq, her position is not only unwise; it is reckless. What is it that would drive Mrs. Clinton to delude herself into believing the United States has irredeemably lost a war in which we’re making remarkable and empirically demonstrable progress? And what additional evidence does the nation need that leading Democrats are invested in a narrative of defeat in Iraq – and they will stick with it regardless of the progress we make? This, in turn, gives rise to a third question: Will the American people elect a person for President who has an ideological stake in seeing America lose this war, which is itself part of an epic struggle against militant Islam?

Later in last night’s debate another revealing moment occurred. During a conversation about poverty, Senator Clinton said this:

Well, I respect John’s [Edwards] commitment to ending poverty. That’s why, 35 years ago, when I graduated from law school, I didn’t go to work for a law firm. I went to work for Marian Wright Edelman at the Children’s Defense Fund, because ending poverty– particularly ending poverty for children, has been the central core cause of everything that I’ve been doing for 35 years.

It’s worth recalling that Ms. Edelman, president of the Children’s Defense Fund, was a fierce critic of welfare reform and called the 1996 law an “outrage… that will hurt and impoverish millions of American children.” Her husband Peter Edelman, then Assistant Secretary for Planning and Evaluation at the Department of Health and Human Services, called the new law “awful” policy that would do “serious harm to American children.” He resigned from his post in protest. And Mrs. Clinton was hardly a champion, and at various points a critic, of welfare reform within the Clinton Administration.

Yet it turns out that the 1996 welfare reform bill was the most successful and dramatic social policy innovation in many decades. The welfare caseload has declined by more than 60 percent since its high-water mark in 1994. All but one state reduced its caseloads by at least one-third, and some states reduced them by more than 90 percent. Not only has the number of people on welfare plunged, but in the wake of welfare reform overall poverty, child poverty, black child poverty, and child hunger declined, while employment of single mothers increased.

Last night’s debate also focused on health care, so it is worth recalling that Mrs. Clinton, as first lady, attempted to engineer a government takeover of our health care system. Her idea was awful and she was politically routed. Her health care failure helped set the stage for Republicans taking control of the House of Representatives for the first time in forty years (Republicans picked up 52 House seats, as well as eight Senate seats, in the 1994 mid-term election).

Senator Clinton portrays herself as a person of extraordinary experience and ability, one who would be “the best president on day one.” Yet most of her experience was as first lady of Arkansas and then the United States. She fulfilled that role for 20 years – and to the degree that she was involved in driving specific policies, she was often wrong.

The GOP is in a bad way right now. But if Hillary Rodham Clinton is the Democratic nominee, a pathway for a GOP victory in November opens up. She wants to make the race about her stances on the issues and her record. So do Republicans.

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Bookshelf

• The trouble with the Internet is . . . well, fill in the blank. Me, I’d fill it in like this: The trouble with the Internet is that it increases the velocity of incivility and stupidity. I suspect that Daniel J. Solove, who teaches at George Washington University Law School and blogs at concurringopinions.com, would agree. His new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, paints a grim picture of the myriad ways in which the web is being misused, sometimes knowingly and sometimes not, to make people miserable:

Somebody you’ve never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet. Your friends or coworkers might be posting rumors about you on their blogs. The personal e-mail you send to others can readily be forwarded along throughout cyberspace, to be mocked and laughed at far and wide. And your children might be posting intimate information about themselves on the Web—or their friends or enemies might be revealing your family secrets. These fragments of information won’t fade away with time, and they can readily be located by any curious individual. . . . As people chronicle the minutiae of their daily lives from childhood onward in blog entries, online conversations, photographs, and videos, they are forever altering their futures—and those of their friends, relatives, and others.

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• The trouble with the Internet is . . . well, fill in the blank. Me, I’d fill it in like this: The trouble with the Internet is that it increases the velocity of incivility and stupidity. I suspect that Daniel J. Solove, who teaches at George Washington University Law School and blogs at concurringopinions.com, would agree. His new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, paints a grim picture of the myriad ways in which the web is being misused, sometimes knowingly and sometimes not, to make people miserable:

Somebody you’ve never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet. Your friends or coworkers might be posting rumors about you on their blogs. The personal e-mail you send to others can readily be forwarded along throughout cyberspace, to be mocked and laughed at far and wide. And your children might be posting intimate information about themselves on the Web—or their friends or enemies might be revealing your family secrets. These fragments of information won’t fade away with time, and they can readily be located by any curious individual. . . . As people chronicle the minutiae of their daily lives from childhood onward in blog entries, online conversations, photographs, and videos, they are forever altering their futures—and those of their friends, relatives, and others.

If you think that sounds apocalyptic, you haven’t been checking your e-mailbox lately. Fortunately, the first half of Solove’s book is a primer devoted in large part to a wide, well-documented assortment of privacy-related horror stories. Not only do social exhibitionists now write about the most intimate aspects of their private lives on the web, but it is becoming common for electronic vigilantes to engage in what Solove calls “shaming,” launching websites whose purpose is to embarrass transgressors ranging from bad tippers to careless drivers. Never before has gossip been so easy to circulate—or so hard to suppress.

Solove is no less interested in putting these phenomena in a wider perspective. He argues, to my mind convincingly, that the prevailing libertarian paradigm of privacy in the electronic age is not adequate to addressing the problems caused by the unique power of the Internet to disseminate information, be it true, false or somewhere in between. Richard Epstein summed up that paradigm when he observed that “the plea for privacy is often a plea for the right to misrepresent one’s self to the rest of the world.” Solove’s view of the matter is both more generous and less doctrinaire in its conceptual underpinnings. America, he points out, is “the land of second chances,” and he worries that the Web is making it difficult to the point of impossible for people to start fresh—or to indulge in the kind of “hypocrisy” that the Victorians taught us to regard as an essential social lubricant. He astutely quotes Milan Kundera in this connection: “Any man who was the same in both public and intimate life would be a monster. He would be without spontaneity in his private life and without responsibility in his public life.”

Alas, Solove has no quick fixes to offer, and the weakest parts of The Future of Reputation are the chapters in which he speculates on how the legal system might be used to bolster the right to privacy under the aspect of Googling. But sometimes it’s more important to ask the right questions than to give the right answers, and Solove asks more than enough good questions to make the most hard-nosed opponent of regulation think twice. At the same time, he also suggests that many of the problems caused by the Internet might be ameliorated, if not solved, were more of us to take to heart the advice now being given out by a top law school to those of its students who blog:

We urge you to take the long view and the adult view of what you write. THINK about the words you send out into the world, and imagine what they would make you look like when you—and surely some of you will—find yourself under review at a confirmation hearing for a professional position you dearly desire.

You don’t have to aspire to a seat on the Supreme Court to profit from that advice.

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Hillary’s Time Tunnel, Episode 3

Can one go back into the past and alter the course of history? The Hillary Clinton for President Exploratory Committee has released its own remake of Hillary’s favorite show, The Time Tunnel. Starring Bill Clinton, it is now available here on YouTube.

In this latest episode—click here for episode one, and here for episode two—Bill Clinton enters the Time Tunnel and alters key happenings in Hillary’s life and career, long before she became a United States Senator and long before he became President.

The drama opens with Bill journeying across his own memories to the moment he met Hillary thirty-five years ago. We see her progress from law school to a career in public service—working for the Children’s Defense Fund and then the House Judiciary Committee. Foreshadowing events that would occur decades later, we then see Hillary following Bill to Arkansas as he became a devoted “public servant” while she taught in the local law school and set up a legal-aid clinic for poor people.

Suspense builds as history takes an astonishing turn in a direction starkly different from the way things happened the first time around. Thanks to the Time Tunnel, Hillary’s years working within the Rose law firm in Little Rock are erased. In an unexpected turn of events, her close friend and law partner Vincent Foster will never come to take his own life; her other close friend and law partner Webster Hubbell will never become a ranking official in the Justice Department and then a convicted felon. Hillary does not join them both in litigating against low-income consumers in a utility-rate case. Hubbell does not later recall, as he would in his memoirs, that “instead of defending poor people and righting wrongs, we found ourselves squarely on the side of corporate greed against the little people.” Read More

Can one go back into the past and alter the course of history? The Hillary Clinton for President Exploratory Committee has released its own remake of Hillary’s favorite show, The Time Tunnel. Starring Bill Clinton, it is now available here on YouTube.

In this latest episode—click here for episode one, and here for episode two—Bill Clinton enters the Time Tunnel and alters key happenings in Hillary’s life and career, long before she became a United States Senator and long before he became President.

The drama opens with Bill journeying across his own memories to the moment he met Hillary thirty-five years ago. We see her progress from law school to a career in public service—working for the Children’s Defense Fund and then the House Judiciary Committee. Foreshadowing events that would occur decades later, we then see Hillary following Bill to Arkansas as he became a devoted “public servant” while she taught in the local law school and set up a legal-aid clinic for poor people.

Suspense builds as history takes an astonishing turn in a direction starkly different from the way things happened the first time around. Thanks to the Time Tunnel, Hillary’s years working within the Rose law firm in Little Rock are erased. In an unexpected turn of events, her close friend and law partner Vincent Foster will never come to take his own life; her other close friend and law partner Webster Hubbell will never become a ranking official in the Justice Department and then a convicted felon. Hillary does not join them both in litigating against low-income consumers in a utility-rate case. Hubbell does not later recall, as he would in his memoirs, that “instead of defending poor people and righting wrongs, we found ourselves squarely on the side of corporate greed against the little people.”

The action then shifts to the climactic years at the White House. “Everyone knows,” says Bill, “that when I was in the White House and Hillary was the First Lady, she led our efforts to try to get health care for all Americans. And everyone knows we didn’t succeed.” As for what he himself was up to, we are given to understand that he was a faithful husband to his beloved First Lady. We are not shown the fateful moment in the White House alcove where Monica reveals her thong. In this version of the past, it would seem that Bill immediately said to the chubby intern, “thanks but no thanks”—and strutted off to the Oval Office to plot attacks on al Qaeda.

Alas, those who enter the Time Tunnel never ever succeed in altering the course of history; only some insignificant details can be changed. On September 11, 2001, 9/11 happened exactly on schedule. At 8:46 AM, a Boeing 767 aircraft crashed into the northern side of the North Tower of the World Trade Center. Hillary ran for a second term in the Senate and won. Now she is running for President. Will the Time Tunnel give her a chance? Or will Whitewater and/or the vast right-wing conspiracy reemerge? Despite the best efforts of her Exploratory Committee, the Time Tunnel can neither help nor halt her. To find out what will happen next in this thrilling show, be sure to stay tuned.

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