[Congressional Record Volume 154, Number 91 (Wednesday, June 4, 2008)]
[Senate]
[Pages S5020-S5024]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 UNANIMOUS-CONSENT AGREEMENT--H.R. 6124

  Mr. REID. Mr. President, I ask unanimous consent that at 4 p.m. on 
Thursday, June 5--that is tomorrow--the Senate proceed to the 
consideration of

[[Page S5021]]

Calendar No. 753, H.R. 6124; that there be 60 minutes of debate divided 
in the following manner, and upon the use or yielding back of the time, 
the Senate vote on passage of the bill: Senator DeMint, 30 minutes; 
Senator Coburn, 20 minutes; 10 minutes total to be controlled by the 
bill managers, Senator Harkin and Senator Chambliss; further, that no 
amendments be in order to the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, let me explain, this is the never-ending 
farm bill. We are going to try it again. Tomorrow we hope we can pass 
it and send it to the President quickly. We hope to send it to the 
White House in the next day or so. The House has already approved it. 
This will take care of the clerical error we had previously.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Mr. President, I hardly know where to start, but let 
me start with the issue of judges.
  The reason it was necessary to make our hard-working and dedicated 
clerical staff here read the amendment today was to make the Senate 
understand that commitments are important. The most important thing 
Senators have--the currency of the realm, if you will, in the Senate--
is their word. When you give your word, you are supposed to keep your 
word.
  On the issue of judicial confirmations, my good friend the majority 
leader and I discussed this matter publicly at the beginning of this 
Congress, and we agreed that President Bush, in the last 2 years of his 
term, should be treated as well as President Reagan, Bush 41, and 
President Clinton were treated in the last 2 years of their tenures in 
office because there was one common thread, and that was that the 
Senate was controlled by the opposition party.
  What has become contentious around here in recent years is the 
confirmation of circuit judges. So we agreed we ought to try to hit the 
average for each of those Presidents in the last 2 years of their 
terms, and the average was 17. The low number was President Clinton, 
with 15. That was the goal. It was clear by April of this year that 
there was no intent to meet that goal, and so we had a skirmish here on 
the floor over going to a bill. We reached an agreement. The majority 
leader indicated we would do three circuit judges before the Memorial 
Day recess. We did one. That commitment was not kept.
  Now, the Senate is not the House. The minority does have rights in 
the Senate. Most things that are accomplished in the Senate are 
accomplished on a bipartisan, cooperative basis. Members of the 
Republican conference believe strongly that commitments ought to be 
kept. So by the reading of the amendment today, people got a chance to 
think about the importance of commitments in this body that can only 
function when our word is kept. Other efforts will be made to drive 
that point home.
  And just keeping the commitment that was made for May--that was not 
kept--is not enough. We are seven judges away from equaling President 
Clinton in the last 2 years of his term--15. Time is ticking away. That 
commitment should be kept for the good of this institution.
  I think it is important to remind our good friends on the other side 
of the aisle that the shoe might be on the other foot. They might be 
making the nominations. Why would they want to set a precedent such as 
this that could come back to bite them so quickly? There is a growing 
sense of anger on this side of the aisle over this issue, and what 
tends to go around comes around in the Senate. This is a precedent we 
ought not to set, and I think the adults on the other side of the aisle 
understand that this is a precedent that ought not to be set for the 
good of either party. So we will be continuing to look for 
opportunities to make the point that commitments ought to be kept.
  Now, with regard to the underlying bill, let me disabuse our 
colleagues or anyone else who may be listening of the notion that 
members of the Republican conference are not interested in having 
amendments on this bill. This is the most massive reorganization of the 
American economy since the 1930s--some believe a $6.7 trillion tax 
increase. Looking at Kentucky alone, it could mean up to $6,000 a year 
for my people, and the GAO says a 53-cents-a-gallon gas tax increase 
over the next 20 years.
  No matter how you look at this--my good friend the majority leader 
says this is necessary to save the planet--no matter how you look at 
it, it is an important bill. This is an important bill. This is no 
small bill, and we are being put in the position, with the tree being 
filled tonight and with cloture being filed, to have this massive, 
significant bill in effect voted on without any amendments.
  An interesting parallel--and I see my good friend the Senator from 
Virginia, who is actually a supporter of this bill and a cosponsor of 
it, sitting here in the Chamber. He and I were here in 1990, as was the 
majority leader, when we did the clean air amendments, which was a 
major piece of legislation. It was not as big as this bill but a big, 
important bill. The Democrats were in control of the House and Senate. 
There was a Republican in the White House. How did we handle the clean 
air amendments of 1990 under George Mitchell, then the Democratic 
leader? We had 5 weeks of debate on the floor of the Senate and we had 
180 amendments. Everybody knew it was an important measure. It deserved 
the attention and the participation of 100 Members of the Senate, not 1 
Member--the majority leader--determining which amendments would get to 
be offered and in the end asking the Senate to accept a procedure under 
which no amendments would be offered. Now, Mr. President, by any 
objective standard, that is not a serious effort to legislate. You 
can't cram a measure of this magnitude down the throat of the Senate or 
the American people with that little scrutiny or observation.
  With regard to the notion that somehow everybody had a chance to look 
at this bill, we got it at 11:15 this morning--the substitute at 11:15 
this morning. You could argue that the vast majority of the Members on 
this side of the aisle were reading it for the first time along with 
the clerks. So this hasn't been laying around for months. The idea that 
we would go to such a measure may have been around for a while, and it 
was--and the majority leader did indicate we would go to this bill 
after the Memorial Day recess, but what was going to be in it? We 
learned about that this morning.
  Thirdly, with regard to nominations, we were prepared to move a 
nominations package tonight, but the nominations package that was 
presented was basically negotiated between the Democratic majority and 
the White House. There is another entity, and that is the Republicans 
in the Senate. We sought to make some adjustments to the nominations 
package, which, interestingly enough, included some district judges who 
are on the Executive Calendar. Now, district judges have not typically 
been controversial. Are we now to believe that even district judges who 
have come out of the committee and are on the calendar are a matter of 
controversy? Is there nothing on which we can agree? Is that the Senate 
today?
  Somebody needs to--and I think it is incumbent upon the majority 
leader and myself--to restore a certain level of comity around here so 
we can function. How in the world did the situation deteriorate to the 
point where district judges who have been reported out of the committee 
and are sitting here on the calendar are a matter of controversy?
  That is where we are as of the evening of June 4, and I think we need 
to have some serious discussions off the floor of the Senate as to how 
we can unravel the problems that have been created by the mistreatment 
of the circuit judge nominations of the President of the United States. 
I think we need to remind ourselves that when we make commitments to 
our colleagues here in the Senate, they need to be kept. And it is time 
to stop this sort of spiral downward that has developed as a result of 
the apparent refusal to make any serious effort to keep commitments 
which have been made, which colleagues depend on, and which are 
essential to the Senate functioning the way it needs to function.
  Mr. President, one final observation about the underlying bill. We 
have enjoined the debate on this bill and would love to be able to 
amend it. We think it is not a 1-week bill; we think it is

[[Page S5022]]

clearly a multiweek bill. If the Clean Air Act of 1990 was a 5-week 
bill, this is certainly at least a month bill. And at whatever point 
the majority gets serious about climate change legislation, then we 
need to set aside enough time to give the entire Senate an opportunity 
first of all to read it and, second, to offer serious amendments to the 
measure.
  I think probably enough has been said today about where we are. 
Hopefully, tomorrow, after a good night's sleep, we can take a look at 
all these matters and see if we can get the Senate back on track to 
develop a level of comity necessary for us to function in the way in 
which the Senate has historically functioned.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I would hope my friend the distinguished 
Republican leader would stay on the floor a brief time. The chairman of 
the Judiciary Committee is here, the Democratic assistant leader is 
here, and they have a few things to say and I have a few things to say.
  Mr. President, let me say, first of all, with all due respect to my 
friend the distinguished Republican leader, the substitute has been 
around for 2 weeks. The summary has been around. Anyone who had a 
question about this, all they had to do was call Senator Boxer, Senator 
Lieberman, or Senator Warner. They know this bill upside and downside. 
So to say they just got it today, that is how we do things here; the 
summary has been around a couple of weeks. Anyone who wanted to see the 
guts of the bill could look at it.
  Mr. McCONNELL. Would the leader yield just for an observation?
  Mr. REID. I will in a short time, but let me also say this. I only 
point this out to show how Orwellian my friend's statements are. They 
wish they could offer amendments on the bill? Now, think about that for 
a minute. Why aren't we offering amendments on the bill? Because they 
won't let us. We have tried working, as I have indicated, in every 
possible way--two amendments, germane, relevant, five amendments. No.
  So I would also say, with judges, let the world understand that there 
is no crisis in the judiciary. The Federal judiciary vacancy rate is 
the lowest it has been in decades--not a few days, weeks, months, 
years--decades.
  I, with the consent and understanding of my friend, Pat Leahy, the 
chairman of the Judiciary Committee, pledged that I would use my good 
faith to have the Senate consider three court of appeals nominees 
before the Memorial Day recess. I didn't say who they would be. And we 
tried very hard.
  I stated explicitly that we couldn't guarantee--and that is in the 
record--I couldn't guarantee the outcome because it depended on factors 
beyond my control. The Senate did in fact confirm Virginia Supreme 
Court Judge Steven Agee to the Fourth Circuit Court of Appeals in May. 
In addition, Chairman Leahy expedited Judiciary Committee consideration 
of two seats to the Michigan Sixth Circuit Court of Appeals in light of 
the pledge I made. These nominations were the result of many years of 
negotiations between the White House and Michigan Senators. This has 
been going on for 6 years.
  Unfortunately, Republicans on the Judiciary Committee objected to 
expedited consideration of the Michigan nominees. One of them had 
already been approved to be a Federal district court judge. This is now 
to be a circuit court judge. He already had an ABA approval of high 
ranking, high approval. They said: No, we want the ABA findings again 
before we are allowed to do anything. As a result, it was impossible to 
have the Senate consider these two additional nominees before the 
recess, despite my best efforts.
  We have treated President Bush's judicial nominations with far 
greater deference than President Clinton was afforded by a Republican-
controlled Senate. Mr. President, 70 Clinton nominees were denied 
hearings or floor consideration. Three-quarters of President Bush's 
court of appeals nominees have been confirmed while only half of 
President Clinton's appellate nominations were confirmed. My friend 
says what goes around comes around. We are not following that because 
we believe we should not treat them like they treated us. I said that a 
long time ago, and we have not. We have been generous in what we have 
done. The lowest vacancy rate in the Federal system for decades is what 
we now have.
  Last year the Senate confirmed 40 judges, more than during any of the 
three previous years with Republicans in charge. Let me say to my 
friend, and I am going to yield to the chairman of the Judiciary 
Committee--let me say to my friend, the distinguished Republican 
leader: Everyone knows, even though it sometimes has been painful for 
all of us, that the chairman of the Judiciary Committee wants a 
recorded vote on these judges. That has been a standard rule that we 
have had.
  We have three on the calendar, and I understand two more you reported 
out today, or very recently. We have five district court judges. I say 
to my friend, the Judiciary Committee member who takes as much guff as 
any Member of the Senate because of this committee, he has the most 
sensitive issues that come before this body, and he holds up very well 
and is a patient man. But as I say, I ask the question through the 
Chair to my friend: Has anyone come to you in the last week and said 
they wanted to do a district court judge?
  Mr. LEAHY. If the Senator will yield without losing his right to the 
floor, nobody has. In fact, as I listen to this colloquy, I was 
wondering what was going on until I read in the Washington Times the 
Republican fixation on judges is part of an effort to bolster Senator 
John McCain's standing among conservatives--which is unfortunate; to 
bring in the judiciary, the independent Federal judiciary, and make 
them a political tool.
  I was reminded once when my children were young, one of them asked 
me, they said: Dad, what is the expression ``crocodile tears''? I tried 
to explain to them what crocodile tears are, and I couldn't help but 
think tonight, listening to our good friends on the other side--if my 
children were still young, I would say: There, now you understand what 
crocodile tears are.
  We had, last year--and the distinguished leader has referred to this; 
the Democrats were in charge, me as chairman, Senator Reid as majority 
leader--we reported 40 judicial nominations to the Senate, and all 40 
were confirmed each of the 3 years prior, with a Republican majority, 
Republican chairman. That is more than they did.
  It is interesting, in fact, since President Bush has been in office 
this is the third time we have been in the majority--one of those times 
very briefly. Republicans have been in the majority three times. Guess 
who moved----
  Mr. McCONNELL. Did the majority leader yield for a question?
  Mr. LEAHY. If I can answer my question----
  Mr. McCONNELL. Parliamentary inquiry: Is it permissible to yield for 
a statement?
  Mr. LEAHY. To further answer the question.
  Mr. McCONNELL. Is it permissible to yield----
  The PRESIDING OFFICER. The Senator may only yield for a question.
  Mr. McCONNELL. Is a question being asked by the Senator from Vermont?
  Mr. LEAHY. Mr. President, I will not ask how the distinguished 
Senator from Kentucky would define crocodile tears, but I ask this 
question of the distinguished majority leader: Was he aware that during 
the time when Democrats have been in charge, during President Bush's 
tenure, we have confirmed judges at a faster pace than when the 
Republicans were in charge? Was the distinguished majority leader aware 
of that?
  Mr. REID. There is no question about that.
  Mr. LEAHY. Mr. President, just one other point, if I might. Was the 
majority leader aware that on at least a couple of occasions, for 
circuit court of appeals judges, when I came back from Vermont during a 
recess to hold a hearing at the request of Republicans because they 
were anxious to get these court of appeals judges through, that the 
Republicans then criticized me for coming back and holding the hearings 
and getting them confirmed? Is the leader aware of that?
  Mr. REID. I very definitely am.
  Mr. President, let me say this. I would say through the Chair to my 
friend, the distinguished Republican leader, the district court judges, 
the

[[Page S5023]]

first I heard about them was tonight, whatever time it was--late this 
evening. Senator Leahy and I are happy to take a look at these district 
court judges. We will work together and see what can be done with them. 
But I say to my friend, I would hope that you would reconsider taking 
us at our word. We will take a look at the district court judges. 
Senator Leahy has said he has never been talked to about it. I never 
have been. We focused on the circuit court judges. I say to my friend, 
you want to talk about ``let's get back to doing things the way we used 
to,'' let's do the Executive Calendar. And the district court judges, 
we will take a look at those.
  Mr. McCONNELL. Will the majority leader yield for a question?
  Mr. REID. I will be happy to.
  Mr. McCONNELL. I am aware of the rules of the Senate. Three judges on 
the calendar have been there since April 24. These are not people who 
just popped out of the committee yesterday.
  Mr. REID. Mr. President, I have been here for a long time--with 
Senator Daschle, I was here on the floor for 6 years. I have been here 
for almost 4 years now in my capacity as Democratic leader. The 
standard operating procedure--and this is in the hearing range of the 
distinguished chairman of the committee who was the ranking member 
during part of that time--it always happened. Somebody brings to our 
attention: We have a judge. Can you help me with it? We don't 
automatically do the judges.
  Nobody asked me. We never worked that way with the judges. We have a 
very heavy calendar, and Senator Leahy--and I support it every step of 
the way. We don't do it in wrap-up. We have votes on these judges.

  I say to my friend, the Republican leader, we will be happy to look 
at the district court judges. In the entire conversations we have had 
dealing with circuit court judges--I understand why they are probably 
more important than district court judges. They are all lifetime 
appointments, a pretty good deal.

  I hope he would take us at our word, and we will work to try to move 
through these at some reasonable fashion and get these done because if 
we don't do it tonight, tomorrow somebody is going to object to 
something else. I don't think you lose one----
  Mr. McCONNELL. Can I further inquire of the majority leader, what 
does ``take a look at'' mean?
  Mr. REID. First of all, I literally mean that. I don't know what 
States they are from. I don't know whether the Senators are Democrats, 
Republicans, States with both. We have not let that stand in our way in 
the past with district court judges, but there may be somebody who 
doesn't like one of them for some reason. You know how things go around 
here. I can't imagine it would be all of them.
  Mr. McCONNELL. I would ask my friend further, are district judges now 
controversial, too, particularly those who have been reported out of 
the committee and been on the calendar for 6 weeks or so?
  Mr. REID. Mr. President, it was just shown to me by my valiant 
staff--we have a judge from Virginia. We have Warner and we have Webb 
from Virginia. They get along very well. I am sure that is something we 
will take a look at. Missouri, the Senators there work well together. 
We have another Senator from Mississippi--these are things we can take 
a look at. I can say--we are not here under oath, but I never heard of 
these judges until just now. We will take a look at them. I can't see 
why we can't work out something and get them approved in the next 
little bit.
  Mr. LEAHY. Will the distinguished majority leader yield for a 
question?
  Mr. REID. Yes.
  Mr. LEAHY. Is the leader aware this is the first I heard that anybody 
wanted to? Not a single member of the Senate Judiciary Committee on the 
Republican side even raised to me that they wanted to move forward with 
them. Is the distinguished majority leader aware that when the 
Republicans were in the majority, when they had judges they wanted 
moved they usually waited to put them on until after the request had 
come from our side to put them on? Was the leader aware of that? Was 
the leader aware of the fact that nobody--nobody--has raised this? In 
fact, the first I heard about it was an hour ago.
  Mr. REID. I say to my friend, the Republican leader, we have no 
intention of stalling, not taking care of district court judges. But 
let us take a look at them. I don't know if there is some--I don't 
know. They are reported out of the committee, they are on the floor, 
there should be no problems with them, and we will do our best to look 
at them. But I say to my friend, these things I want to get done 
tonight--this is a Cabinet officer. We have a man, Jim Glassman, Under 
Secretary of State, who--the President's Chief of Staff says he is 
going to withdraw his name. He is tired of waiting. He has to get a job 
someplace. I want to get these done.
  As I say, there are some 80 of them or more. We will work on these. I 
tell you I would even give my friend, the Republican leader--Senator 
Leahy and I will work on these three district court judges. I read the 
names. We will try to do them in the next week or so. OK?
  Mr. LEAHY. As I said, at least I would like to discuss them with the 
ranking member.
  Mr. McCONNELL. Will the leader yield for a question?
  Mr. REID. Of course.
  Mr. McCONNELL. My assumption is if they are on the calendar and made 
it out of the committee, they are not controversial. How about 
scheduling a vote? We don't have to do it tomorrow. Can we even 
schedule one?
  Mr. REID. The Republican leader said we want to work the way we used 
to in the Senate. Take our word for it. We are not trying to deep six 
these people. This is the first time I ever heard about it.
  Mr. SESSIONS. Will the majority leader yield for a question?
  Mr. REID. I will be happy to yield for a question.
  Mr. SESSIONS. I appreciate the many challenges the majority leader 
has, and a lot of difficult people. Sometimes cats are hard to herd, as 
Trent Lott used to say. But the deal and the concern was so great--if I 
could ask the majority leader--what about the understanding we thought 
existed that there would be confirmed an average number of circuit 
court of appeals judges this Congress, which would be 17 or so 
nominees? Is that still afoot or is that somehow being forgotten? We 
hear talk that maybe few if any more circuit judges will be confirmed. 
That is what has caused a great deal of angst on this side of the 
aisle.
  Mr. REID. We committed to do the three judges. We got one done. We 
will do our best to get two done. But we have been held up doing that 
as the member of the Judiciary Committee understands. We had to wait 
for the ABA report to come in again. I don't know where that stands, 
but we are moving forward on those, and we are going to try to do our 
very best to get those done as soon as we can.
  Mr. SESSIONS. If the majority leader will yield, that wasn't 
precisely my question. The overall question is--and there are quite a 
number of judges pending, and more should be moved out of committee if 
there is not a blockage going on. Are we going to reach--is it the 
majority leader's intention to reach the average as we thought an 
understanding existed to do?
  Mr. REID. Mr. President, I try to be a very patient man. I know my 
friend, whom I complimented publicly on the floor, didn't mean what he 
said this morning about me.
  I am sure if that were brought to his attention, he would ask that to 
be taken from the Record because it is in violation of the rules; 
basically, that I was clueless. I am sure he did not mean that, but 
that is what he said. And people said it is a violation of rule XIX.
  I say first to my friend from Alabama, he said that. Was it something 
he did not really mean, that I was clueless? Because that is an insult. 
I would ask my friend, did you really mean that I was clueless?
  Mr. SESSIONS. If I was violating a rule or saying anything to insult 
the majority leader, I would apologize because I do respect the 
majority leader. He always treated me fairly, as I think he does most 
people in the Senate. I think he is so recognized.
  But we have a difficult challenge. But my response, the reason I was 
a little bit aggressive on that was because the majority leader knows 
that on Monday afternoon in his speech, he was very hard on the 
Republican leader, Senator McConnell, and he said

[[Page S5024]]

some things about him that I thought went too far because I guess we 
were involved in some big important issues and we are all a little bit 
tense about that.
  Mr. REID. I want to be careful. It is late tonight. I certainly do 
not want to get involved in any friction. I appreciate what my friend 
said because even though he and I disagree on a lot of things, I do not 
know of a Member of the Senate who is more sincere in what he does than 
the Senator from Alabama.
  Mr. McCONNELL. Can I ask a question, and maybe we can make some 
progress here? If we can schedule some of these I think completely 
noncontroversial district judges--the chairman of the Judiciary 
Committee is here. We would like to move the nominations package.
  Mr. REID. Let me say to my friend the Republican leader----
  Mr. McCONNELL. We are not talking about clearing the judges in 
connection with this package, we are talking about scheduling votes, 
and the man you have to clear it with is right there.
  Mr. REID. They are on the calendar. Let me say this one thing to my 
friend. We have a Judiciary Committee member here. I pride myself in 
not running my committees. Some leaders have tried to do that; I do not 
do that. I want to do the best I can in moving circuit court judges, 
and we have done fairly well in very trying circumstances.
  So I say to my friend the Senator from Alabama, I have made a 
commitment to do three circuit court judges. I will live up to that to 
the best of my ability. I said prior to the May recess: I cannot 
guarantee that, but I am going to do my best. I think that it is 
something Senator Leahy and I have to move forward on.
  I ask my friend and I say to the Republican leader, trust us on this. 
I said publicly here that we will do something to try to schedule these 
within the next week. We have a few important things, but that does not 
take long to do that--an hour, an hour and a half.
  I ask my friend the Judiciary Committee chairman whether we can work 
to try to get some votes scheduled on these three whom I noted in the 
next week.
  Mr. LEAHY. Well, Mr. President, to answer the distinguished leader, 
as I always assume the Republican leader to do because this has been 
the practice, certainly as long as he has been in the Senate--perhaps 
he has forgotten--is that the chairman of these committees sets a time 
for a vote, and it is almost always, as a matter of courtesy, at least, 
discussed with the ranking minority member. I realize the hour is late 
and the Republican leader may have forgotten that. But it has been my 
practice to always discuss the time of the vote with the ranking 
member, as he did with me when he was chairman.
  To answer the majority leader's question, of course I will be happy 
to talk with the distinguished ranking member of the committee and find 
time when they might be scheduled. I might point out, each one of those 
was expedited.
  I would ask two brief questions--and then I will leave--of the 
distinguished majority leader. Was he aware that, when talking 
statistics, I committed not to follow the precedent of the Republicans 
when President Clinton was the President, their precedent of pocket 
filibustering over 60 of President Clinton's nominees? Was the 
distinguished majority leader aware that I will not follow that 
precedent and we will not pocket filibuster 60 or anywhere near that?
  Mr. REID. I would answer my friend in addition to that, the Thurmond 
Rule is after June 1. There is no Thurmond Rule, is there?
  Mr. LEAHY. He is right.
  I ask the leader one last question on why I mentioned the Washington 
Times story about the motivation for this. Was he aware that one of the 
circuit court nominees whom we held up for a number of appropriate 
reasons--that even after that nominee was convicted of criminal fraud 
that occurred while his nomination was pending, we were still 
criticized for holding up that nominee? It is kind of you are damned if 
you do and damned if you don't.
  Mr. REID. I say, we will get this done.
  Mr. McCONNELL. I think we are close to an understanding here that 
allows us to clear this nominations package. You have your chairman 
here, and I am authorized to speak for the ranking member on this 
issue.
  Did the majority leader say, in consultation with his chairman, that 
we could expect to schedule these votes within the next week or so on 
these noncontroversial district court judges?
  Mr. REID. That is what I said.
  Mr. McCONNELL. Then I think we have reached an understanding that 
would certainly lead me to think we ought to go forward with the 
nominations package you have been working on with the administration.

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