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Senate Proceeding on Aug 3rd, 2010 :: 4:15:55 to 4:44:20
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Jon Kyl

4:15:52 to 4:16:13( Edit History Discussion )

Jon Kyl: intend to vote for the confirmation of elena kagan to be the next the supreme court of the united states. >> kagan is intelligence, wellerso spoken, per son-in-law and skilled in the law. she is skilled in the art of argument.

Jon Kyl

4:15:55 to 4:44:20( Edit History Discussion )
Speech By: Jon Kyl

Jon Kyl

4:16:14 to 4:16:35( Edit History Discussion )

Jon Kyl: she did not testify meaningfully law before the judiciary committee concealing and disguising her views and playing the same bay of hide the wall as someone who went before her, albeit with more skill. probably because she criticizedh the practice so collectly, many expected her to eat -- set aary

Jon Kyl

4:16:36 to 4:16:57( Edit History Discussion )

Jon Kyl: different standards. what, if anything, can be done about it? former jewish dish key committee -- during her testimony and i quote -- "answered much of went on to say this, it would be my hope that we could find someplace between voting no and

Jon Kyl

4:16:58 to 4:17:21( Edit History Discussion )

Jon Kyl: having some sort of substantive answer, but i think we are searching for a way you can get substantive answers short of voting no. i confess, like senator specter, i don't know how we can expect nominees to be forthcoming except through supporting votes.

Jon Kyl

4:17:22 to 4:17:42( Edit History Discussion )

Jon Kyl: my threshold does not require answering on issues sure to come before court nor necessarily expressing agreement or disagreement with decisions with court opinions. it is possible to learn much about a nominee's approach to judging without committing to one a specific position in the future cases. what we should expect, however, candor and a willingness to

Jon Kyl

4:17:43 to 4:18:03( Edit History Discussion )

Jon Kyl: honestly discuss background and general constitutional principles, approachs to judging, and writings and matters within the nominee's background that bear on the nominee's suitability for the >> in explaining why i could not vo for now-justice sotomayor, i said that i thought she was disingenuous with the judiciary jus

Jon Kyl

4:18:04 to 4:18:25( Edit History Discussion )

Jon Kyl: committee, obviously, reaching such aconclusion precludes support notwithstanding other qualifications for the position. reluctantly, after analysis of her testimony weighed with her past writings, statements and actions, i have reached the sames, i conclusion regarding elena kagan. exhibit a is her insistence on

Jon Kyl

4:18:26 to 4:18:48( Edit History Discussion )

Jon Kyl: redefing her position on military recruiting on harvard campus. the separa but equal defense and attempt to down play the steps she took to undermine the policy of don't ask, don't tell were, ultimately, unbelievable. it is almost unfathomable, for example, that someone with ms. kagan's considerable legall

Jon Kyl

4:18:49 to 4:19:10( Edit History Discussion )

Jon Kyl: acumen could have, as she asserted, always thought we were acting in compliance with the solomon amendment. she tried committee that her actions were a justifiable response to a policy that she viewed as discriminating against homosexuals, but as senator ses sessions noted, her stand against was not universal. she did not speak out, for

Jon Kyl

4:19:11 to 4:19:31( Edit History Discussion )

Jon Kyl: example,er when harvard accepted $20 million from a member of theom a saudi royal family to establishdi a center for the study of sharia law even though under sharia law -- and i'm quoting here -- sexual activity between two persons of the same gender is punishable by death or flogging,

Jon Kyl

4:19:32 to 4:19:52( Edit History Discussion )

Jon Kyl: end of quote.olic the policy is especially perplexing given her reluctance to take action linked to the abuse of homosexuals, women andan others. exhibit b is her astonishingeant redefinition of what she meant

Jon Kyl

4:19:53 to 4:20:13( Edit History Discussion )

Jon Kyl: in her effusive praise for justice marshall's rule for role of the court, she agreed with his activist approach toing. judging. justice marshall had an enormous on influence on our jurisprudenceng starting with and his add slow casey before and most especially

Jon Kyl

4:20:14 to 4:20:35( Edit History Discussion )

Jon Kyl: with brown v. board oft education. indeed, under -- consider thef comments of another former p marshall clerk, liberal law professor who now serves in the obama administration.he she said this -- he said this: a serious commitment to marshall's vision of constitutionality t would entail an extraordinaryry

Jon Kyl

4:20:36 to 4:20:56( Edit History Discussion )

Jon Kyl: role, one for which courts are quite ill-suited, end of quote. even if the best be substantive theory calls for something like marshall's vision, institutional considerations would argue powerfully against it, end of quote. ms. kagan's attempt is meaning only, but he wanted everybody to have equal access to the court

Jon Kyl

4:20:57 to 4:21:19( Edit History Discussion )

Jon Kyl: is, and there is no other word for it, disingenuous. because she apparently embraces his philosophy but f acknowledgment of that would confirm that she would be a results-oriented judge, she fudged. in doingoi so, she compounded theicio problem with deceptive testimony. exhibit c is the explanation of

Jon Kyl

4:21:20 to 4:21:40( Edit History Discussion )

Jon Kyl: several of her bench memos to justice marshall insisting they did not contain her views but but wereerely channeling of his. ms. kagan offered this explanation for a memo categorizing litigants as good guys and bad guys. for once the government was on f the side of the an memo expressing fear that the

Jon Kyl

4:21:41 to 4:22:02( Edit History Discussion )

Jon Kyl: court might create some very bad law on abortion and/or prisoners' rights. one gets the sense that ms. kagan was not simplymply channeling her boss, but was instead expressing her own personal policy view on matters before the court and that theyfore had as much to do with who the litigants were as what the issues were.

Jon Kyl

4:22:03 to 4:22:25( Edit History Discussion )

Jon Kyl: ms. kagan also attempted to recast her praise of israelly supreme court justice barak who is widely acknowledged as someone who took an activist approach to judging.ap well, that's exhibit d. judge richard posener describede barak's history as creating a degree of judicial power

Jon Kyl

4:22:26 to 4:22:48( Edit History Discussion )

Jon Kyl: undreamed of even by our mostn aggressive supreme court justices, end quote. under his leadership the israeli supreme court aggrandized it own power far beyond what many of i those on the left would view as acceptable in america. lef to cite one example of justice barak's judicial philosophy, he wrote that a judge's role, and i

Jon Kyl

4:22:49 to 4:23:10( Edit History Discussion )

Jon Kyl: quote s not restricted to adjudicating disputes, but rather to bridge the gap betweenher law and society. end of quote. well, bridging gaps, clearly, and using the law to address societal problems is not the job of the courts. that's a political approach. ms. kagan claimed during her hearing that her praise for justice barak had nothing to do

Jon Kyl

4:23:11 to 4:23:31( Edit History Discussion )

Jon Kyl: with his left-wing judicial philosophy, but an examination of her statements tells a different story. in 2002 ms. kagan praised barak for, and i'm quoting, presiding over the development of one of the most principled legal systems in the world, end quote. in 2006 she again heaped professional praise on justiceice barak calling him her judicial

Jon Kyl

4:23:32 to 4:23:52( Edit History Discussion )

Jon Kyl: hero. a noted legal commentator summarized this event well, andd i quote: kagan begins by referring to the four hole ms, brennan and frankfurter. but, she says, the harvard law school association of which i am

Jon Kyl

4:23:53 to 4:24:13( Edit History Discussion )

Jon Kyl: most proud, more proud, that is,e than of the associations with the previous four is the one weer o have with president barak of theresi his -- israeli supreme court, end quote. and then she continued, i told him he is my judicial hero, the

Jon Kyl

4:24:14 to 4:24:34( Edit History Discussion )

Jon Kyl: judge or justice wh represents the values of democrat and human rights, of the rule of law and justice. during her confirmation hearing, ms. kagan, under oath, testified she admired justice barak this his role for creating an independent judiciary in israel.

Jon Kyl

4:24:35 to 4:24:57( Edit History Discussion )

Jon Kyl: not for any of his particularloso decisions. that testimony cannot be squared with her public declaration that justice barak, and i quote, is the judge or justice in lifetime whom i think best represents and has best advanced the values of democrat, human rights of the rule of law and of justice.

Jon Kyl

4:26:01 to 4:26:23( Edit History Discussion )

Jon Kyl: so senator sessions pressed ms. kagan. i'm asking about his firm statement that you are a progressive. i think he knew what he was talkingbout, he's l been in the midst of great debates in this country, so i ask you again, do you think it's a fair characterization of your views? certain lu, you don't think he

Jon Kyl

4:26:24 to 4:26:46( Edit History Discussion )

Jon Kyl: was attempting to embarrass you. she again said, i love my good friend, ron, she said, but i guess i think people should be allowed to label themselves and that's, you know, i don't know what that label means. and so i guess i'm not going to characterize it one way or the way other, end of quote. sohe a nominee to the highest court in the land and a former

Jon Kyl

4:26:47 to 4:27:07( Edit History Discussion )

Jon Kyl: dean of one of the nation's most prestigious law schools admitsor she doesn't know what the phrase means. mr. craig said, quote, elena kagan is largely a progressive in the mold of obama himself. end of quote. so senator graham asked, would you consider, then, your

Jon Kyl

4:27:08 to 4:27:30( Edit History Discussion )

Jon Kyl: political views progressive? p then ms. kagan acknowledged that , yes, her political views are generally progressive. it's hard to believe thatit ms. kagan knows what a political progressive is but not a legal progressive. exhibit f, her attempt topt t redefine her views in the letter the sent to judiciary committee on

Jon Kyl

4:27:31 to 4:27:52( Edit History Discussion )

Jon Kyl: november 14, 2005, in which she o objected to the graham-kyl-cornyn amendment. her characterization of our approach as being similar to the fundamentally lost actions of dictatorships was clearly injudicious and revealed the fervor of her position, muchch like her characterization of the

Jon Kyl

4:27:53 to 4:28:13( Edit History Discussion )

Jon Kyl: don't ask, don't tell policy as a, quote, first injustice of the moral order. and she would have a hard time laying aside if similar questions ever came before her as a supme court justice. in her attempt to denies herself from the obvious -- distance herself from the obvious application of her views.han obviously, her letter bemoanedmo

Jon Kyl

4:28:14 to 4:28:35( Edit History Discussion )

Jon Kyl: the rious and disturbing reports of be the abuse ofious prisoners in guantanamo, iraq and afghanistan. and issues other than conviction and sentencing even though her letter stated that our amendment, unfortunately, wou prohibit treatment of prisoners,llen adjudications of their guilt and

Jon Kyl

4:28:36 to 4:28:56( Edit History Discussion )

Jon Kyl: their punishment, end of quote. suggests either she was uncomfortable defending herure position. the attempt to obscure positions she had previously stated was, ielie believe, an attempt to run awayse from those positions and misleadead the committee. exhibit g, ms. kagan's double speak on the question of same

Jon Kyl

4:28:57 to 4:29:19( Edit History Discussion )

Jon Kyl: sex marriage. prior to her confirmation when she was not restricted as judicial ability -- senator cornyn asked ms. kagan a direct questionorny about her personal views believe this is a fundamental constitutional right to same-sexiage marriage, he asked. ans her answer then seemed clear.

Jon Kyl

4:29:20 to 4:29:42( Edit History Discussion )

Jon Kyl: she wrote, quote, there is no federal constitutional right toe." same-sex marriage. period, end of quote. but at the hearing when i asked her to confirm her views on this suect, she told me that senator cornyn had asked whether she could perform the role oftor

Jon Kyl

4:29:43 to 4:30:03( Edit History Discussion )

Jon Kyl: solicitor general.ell. when i said that it was about a constitutional right to same-sex marriage, not don't ask, don't tell, she said that her answer to senator cornyn is there is no constitutional right to same-sex marriage, and accepted the state of the law. end of quote. having reinterpreted her

Jon Kyl

4:30:04 to 4:30:24( Edit History Discussion )

Jon Kyl: previous answer, she then told me that as supreme court nominee, it would be -- it would not be appropriate for her to share her personal views on the subject since such a case might come to the court. it strikes me that ms. kagan was, at the time of her nomination to be solicitor general, trying to create an impression, apparently a fal one, that she did not personally

Jon Kyl

4:30:25 to 4:30:45( Edit History Discussion )

Jon Kyl: believe the constitution could be read to include the right to same-sex marriage. that leads to exhibit h, her in??lvement while serving as solicitor general in a case concerning the constitutionality of the defense of marriage act, or doma. when nominated for the job of solicitor general, ms. kagan emphasized in her opening statement the critical

Jon Kyl

4:30:46 to 4:31:07( Edit History Discussion )

Jon Kyl: responsibilities that the solicitor general owes to congress, most notably the vigorous defense of the statutes of this country against constitutional attack. later ms. kagan reiterated that she could represent the interests of the united states with vigor, even when they conflict with my own >> i believe, she said, deeply that specific roles carry with rol them specific responsibilities

Jon Kyl

4:31:08 to 4:31:29( Edit History Discussion )

Jon Kyl: and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible. end of quote. even ms. kagan even cited tedolic old sewn's -- olsen's defense of the campaign laws. she said, i know that ted olsen

Jon Kyl

4:31:30 to 4:31:50( Edit History Discussion )

Jon Kyl: would not have voted for the vot bill, but he did an extraordinary bill in defending that piece of legislation, and job that's what a solicitor general does, end of quote. yet there is substantial reasonubst to doubt that ms. kaganth genuinely carried out her obligations to vigorously ce fend -- defend the statute in district court, the defense of

Jon Kyl

4:31:51 to 4:32:11( Edit History Discussion )

Jon Kyl: marriage act. finish q ms. kagan acknowledged that she was involved in two district court cases involvings i doma. her personal involvement was itself unusual as she admitted many response to writtente questions. she said, quote, in the normal course of a solicitor general'srtic office does not participate in." district court litigation, end

Jon Kyl

4:32:12 to 4:32:33( Edit History Discussion )

Jon Kyl: of quote. well, her involvement would not have raised concerns we it not for the position that the government advocated in the cays. -- cases. in the first case, thean't oft of justice justice filed a bef that commit admitted to the court, and i'm quoting, this sup administration does not support o

Jon Kyl

4:32:34 to 4:32:55( Edit History Discussion )

Jon Kyl: doma as a matter of policy p believes that it is discriminatory and supports its repeal, end of quote. how can a lawyer mount a defense of a statute while declaring the statute to be discriminatory? the justice department brief also asked the court to ignore one of the strongest arguments

Jon Kyl

4:33:18 to 4:33:38( Edit History Discussion )

Jon Kyl: of the doma statute, in fact, undercut the law's constitutionality. as one legal scholar andent proponent of same-sex marriage said about the justice department's argument, and i quote, this new position is a gift to the gay marriage movement. it will ben. cited by litigants in

Jon Kyl

4:33:39 to 4:34:00( Edit History Discussion )

Jon Kyl: state and federal litigation and will no doubt make it way into judicial decisions. tohe reject same-sex marriage claims. the department of justice is helping knock out a leg from under thef opposition to gay opp marriage, end of quote. the case was later dismissedby

Jon Kyl

4:34:01 to 4:34:21( Edit History Discussion )

Jon Kyl: the district court for other reasons, and that brings us to the second case in whichice ms. kagan was involved. in gil the justice departmtar again offeredte the samest half-hearted defense of d work ma. thisev time, however, the district

Jon Kyl

4:34:22 to 4:34:42( Edit History Discussion )

Jon Kyl: court seized on the childbearingarin rationales and found that do measuring a was unconstitutional. the noted legal commentator and former principle deputy of the office of legal counsel has explained that the decision in gil and, i quote, would be ridiculous but with for doj'snt

Jon Kyl

4:34:43 to 4:35:03( Edit History Discussion )

Jon Kyl: abandonment of congress' statedfor justifications for doma. it would be enough to recognized h that it would have been reasonable for congress in 1996 to regard traditional marriage as a valuable vehicle for encouraging procreation and childbearing, end of quote. although ms. kagan admitted to

Jon Kyl

4:35:04 to 4:35:25( Edit History Discussion )

Jon Kyl: being involved in both decisions -- or cases, rather,e re she refused to tell us her role in the deliberations n. responses, m to written questions, she didti anytime her participant -- admitwa her participation was, quote, substantially -- [inaudible] but this promise itself wasuous

Jon Kyl

4:35:26 to 4:35:46( Edit History Discussion )

Jon Kyl: disingenuous because the smelt case had already been dismissed, so there was no chance that it the would come before the supreme court. on the other hand, t g irk l case may very well make it way to the supreme court, but ms. kagan did not promise toelf recuse herself from participating in it. des despite her involvement inrm formlating the justice's

Jon Kyl

4:35:47 to 4:36:07( Edit History Discussion )

Jon Kyl: department's flawed defense ofver doma in that case. we will likely never know. m wh we do know is she has a history of ignoring the law.unus we also know she got involved in these district court cases and thjustice department went out to

Jon Kyl

4:36:08 to 4:36:28( Edit History Discussion )

Jon Kyl: of its way to abandon one of theth fundamental rationales for the doma statute which resulted in a court forhe first time ever ruling the doma was fac unconstitutional. on the basis ofi these facts, i believe any reasonable observer would question mr. ms. kagan kept her promise to us as solicitor general.

Jon Kyl

4:36:29 to 4:36:49( Edit History Discussion )

Jon Kyl: exhibit i is her dubiousus explanation of why in another case that she handled as solicitor general she declinedulin to --t v. the department of the air force, a case challenging the constitutionality of the government's don't ask/don't tell statute. at her hearing, miss kagan claimed that allowing the 9th circuit decision to stand and

Jon Kyl

4:36:50 to 4:37:10( Edit History Discussion )

Jon Kyl: accepting a remand and trial in district court, would provide the supreme court with a fuller record and would help the government show circuit was demanding that the government do to defend don't ask/don't tell. but a review of the ninth circuit opinion and the record in this case shows that miss kagan's explanation was disingenuous. the ninth circuit itself had

Jon Kyl

4:37:11 to 4:37:32( Edit History Discussion )

Jon Kyl: already said what the government would need to prove for the federal law to survive. there was no need to develop a fuller record or seek further clarification from the courts. miss kagan's decision to let the case return to the district court ensured that members of the military would be subjected to invasive and hugh mill taight trials in the witt case and in all other challenges against don't ask/don't tell, trials in

Jon Kyl

4:37:33 to 4:37:53( Edit History Discussion )

Jon Kyl: which soldiers would b compelled to testify against their comrades, discuss their views of a fellow soldier's sexual practices, and watch as the unit's personnel files became fodder for laws trying to condemn what is supposed to be a militarywide policy. the government rightly argued before the trial court that such trials are guaranteed to destroy unit cohesion, t very thing

Jon Kyl

4:37:54 to 4:38:14( Edit History Discussion )

Jon Kyl: that congress sought to protect when it passed the don't ask/don't tell state >> and the trial court records show that kagan knew in advance that the trial process would harm the military's interest,t t but she decided to thrust the government into exactly the position the military's lawyers most wanted to avoid. perhaps p to keep in place and insulate from supreme court

Jon Kyl

4:38:15 to 4:38:35( Edit History Discussion )

Jon Kyl: review aou ninth circuit ruling that places don't ask, don'tn tell policy in jeopardy. well, in addition to my concerns that ms. kagan was less than candid with the judiciaryco committee, i'm also concerneder about her leftist ideology can the potential that it will influence her judging, and i'll just briefly discuss three areas of concern. t

Jon Kyl

4:38:36 to 4:38:56( Edit History Discussion )

Jon Kyl: first is her defense of the brief filed in claim we are of commerce -- chamber of commerce v -- [inaudible] tak takes a clever lawyer, but nothe take rodriguez v. holder. she asked the supreme court to strike down an arizona law that permits the state to spend or

Jon Kyl

4:38:57 to 4:39:17( Edit History Discussion )

Jon Kyl: revoke the business licenseof companies that knowingly employ illegal aliens. she d this even thou federal law expressly auorizes states to enforce immigration laws through licensing and even though the courts that havehe considered the issue have determined that states could do precisely what arizona did. r another immigration case, she

Jon Kyl

4:39:18 to 4:39:38( Edit History Discussion )

Jon Kyl: refused to appeal a decision by the ninth circuit that permits ordinary deportation hearings to behe bogged down by long legal fights over the admissibility of clear evidence that a person is illegally here. the ninth circuit decision in lopez/rodriguez was a conflict of decisions of other courts including the supreme court and

Jon Kyl

4:39:39 to 4:40:01( Edit History Discussion )

Jon Kyl: did involve a significant constitutional issue.cons it's difficult not to conclude c that ms. kagan's action in thesethes the law and more by politicalmy s expediency. my second concern about ideologyat is s ms. kagan has shown she may the

Jon Kyl

4:40:02 to 4:40:24( Edit History Discussion )

Jon Kyl: have a second amendment. sai ms. kagan said, i think that's what the court held in mcdonald. she also said that the holding was a good precedent going forward. of course, there's a strong record of nominees describing theth holding of the case and a claiming it's good precedentd only to vote or overturn thatnce

Jon Kyl

4:40:25 to 4:40:45( Edit History Discussion )

Jon Kyl: precedent once they ascend to bench. but we need not rely on cynicism to demonstrate ms. kagan may not review the second amendment question as settling the question of whether gun ownership is a fundamental right. generally speaking, anyre government transition on that right is subject to strict

Jon Kyl

4:40:46 to 4:41:07( Edit History Discussion )

Jon Kyl: scrutiny by the courses, but at k her hearing, ms. kagan left over the possibility that some other lesser standard of scrutiny should apply to second amendment restrictions. she said that,sh quote, going forward the supreme court will need to decide what level of constitutional scrutiny will apply to gun regulations, end of quote. this does not sound like ammit commitment to the principle that

Jon Kyl

4:41:08 to 4:41:30( Edit History Discussion )

Jon Kyl: the second guarantees a fundamental right. when weighed with her well documented work in the clintonol administration, i believe there is justifiable concern that ms. kagan would vote to construe mcdonald as narrowly as possible. third, i'm concerned that ms. kagan sees few, if any,

Jon Kyl

4:41:31 to 4:41:51( Edit History Discussion )

Jon Kyl: limitations on congress' ability to regulate interstate commerce.wh senator coburn asked whether it would be constitutional for congress to pass a law requiring americans to eat three fruits and vem tablesser day -- tha technology tables every day.

Jon Kyl

4:41:52 to 4:42:12( Edit History Discussion )

Jon Kyl: sh court analyzing such a statute should read the commerce clause broadly and give real deference to congress. i agree that the commerce clause gives the congress substantial authority but it does not give congress unlimited authority. that miss kagan was unwilling to say a law requiring the consumption of produce is beyond

Jon Kyl

4:42:13 to 4:42:33( Edit History Discussion )

Jon Kyl: congress' authority suggests she would vote to uphold statutes that exceed the boundaries of the commer clause. stretching the commerce clause, thus, gives toouch power to congress. finally, mr. president, it's worth noting that miss kagan came to the senate with a lack of legal and judicial experience, especially when compared to other recent nominees.

Jon Kyl

4:42:34 to 4:42:55( Edit History Discussion )

Jon Kyl: some have reached back 40 years to compare her experience to that of chief justice rehnquist, the last nominee without prior judicial experience. confirmed to the supreme court in 1972. william rehnquist, however, spent 16 years as a practicing litigator in my home state of arizona and two more years as assistant attorney general in the office of legal counsel, a

Jon Kyl

4:42:56 to 4:43:16( Edit History Discussion )

Jon Kyl: position that was later held by justice scalia. and that, according to the department of justice, typical des with legal issues of peculiar complexity and provides authoritative legal advice to the president and all the executive branch agencies. in contrast, ms. kagan's law practice is confined to two

Jon Kyl

4:43:17 to 4:43:38( Edit History Discussion )

Jon Kyl: years in private practice shortly after law school and one year o af solicitor general. her limited experience is not, by itself, disqualifying. but it did increase the importance of her hearing.red had she answered questions in an honest and straightforward manner, we might have a better basis to know what kind of a judge she'd be. but instead, ms. kagan either

Jon Kyl

4:43:39 to 4:43:59( Edit History Discussion )

Jon Kyl: dodged questions or gave what were clearly disingenuous answers. she also failed to make the case that her political ideology would not influence her judging. i for all of the reasons that i've discussed, i nomination. >> we'll return live, now, to

Jon Kyl

4:44:00 to 4:44:20( Edit History Discussion )

Jon Kyl: the u.s. senate where senators are debating the nomination of elena kagan to the nation's highest court. senators have agreed to ternate debate time between democrats and republicans. it's expected to last until about 8:15 tonight and continue into tomorrow. a vote is pnned for the week. elena kagan is in line to

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