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Thread: Expanding the Supreme Court

  1. #1
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    Default Expanding the Supreme Court

    It actually is a very good idea. The court has become too important in the political and social life of the country. The death of a single, elderly justice with long-standing health issues should not be cause for political and social upheaval. With more justices this would likely be much less of a concern.

    Also, with the death of RBG, all of the remaining justices attended either Harvard or Yale (RGB attended Columbia, which is also an Ivy). Already unrepresentative, it has become an increasingly "elite" institution.

    The court should be more representative of the people (especially if it will take on a quasi-legislative function, as it is increasingly wont to do).

    Presumably an expansion would make it easier to diversify the court, not just racially, but socio-economically and with respect to gender.

    All of these elements would be beneficial to the court, the country and the people.

    Rather than threatening expansion as a punitive measure, Democrats should instead hold hearings on the issue in an attempt to build bipartisan consensus for it.

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    Default Re: Expanding the Supreme Court

    Migod, we agree.

    IMO the new Congress should schedule such hearings in each chamber ... following Biden's inauguration.
    If I use the word "God," I sure don't mean an old man in the sky who just loves the occasional goat sacrifice. - Anne Lamott

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    Default Re: Expanding the Supreme Court

    bipartisan consensus

    <snort>
    Simpler is better, except when complicated looks really cool.

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    Default Re: Expanding the Supreme Court

    . . . in an attempt to build bipartisan consensus for it.
    Might be a good idea, but under current circumstances . . .

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    for nature cannot be fooled."

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    Default Re: Expanding the Supreme Court

    sparkly
    Simpler is better, except when complicated looks really cool.

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Paul Pless View Post
    sparkly
    But not the authentic 'pink' unicorn... it's one of those lavender upstarts...

    I agree that - on the merits - it might be a good idea. The largest factor in that agreement is the increasing politicization (thanks Ronnie!!).

    I also know that, right now, it will a huge partisan donnybrook. Might inspire some pushback.
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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Sky Blue View Post

    Also, with the death of RBG, all of the remaining justices attended either Harvard or Yale (RGB attended Columbia, which is also an Ivy). Already unrepresentative, it has become an increasingly "elite" institution.

    The court should be more representative of the people (especially if it will take on a quasi-legislative function, as it is increasingly wont to do).

    Sorry, but I want a group of "elites" deciding what is the law and what is not. We have seen what happens when hacks get into congress, the Senate, and even the Presidency, There is a reason those Ivy league schools are "elite", you should need to be the best to go there.
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    Default Re: Expanding the Supreme Court

    By "elites" I presume we mean people who have been trained to be competent in this or that itty bitty little niche of activity, not the great unwashed rest of us?

    I like "elites" flying the airplanes I ride in, and manufacturing the pharmaceuticals Herself uses to stay alive. I like "elites" fixing the roof the of house I live in too, though the danger of not having as much proven expertise doesn't show itself as quickly.

    IMO, the number of deaths we've seen strewn 'round various jurisdictions from mismanaged public health issues suggests that the occasional "elite" person ought to be there too.

    Anyone prefer somebody who isn't "elite" designing and manufacturing the brakes for your car?
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    Default Re: Expanding the Supreme Court

    I'm with Tom. Migod, we agree!!! I had never considered what school one comes from as playing a part in diversifying. I'm a mariner, I would expect that a mariner trained at the Marine Institute, as I was, to be equal to one trained at Georgian College like my buddy Adam for example. (Even though we know I'm a better sailor than he is, he just won't admit it.) But kidding aside, I ask the question, does it matter that most of the justices attended just one or two of the top law schools in their country, or would it add anything for some from other schools to be added to the bench? One would think that after the time it takes to become experienced enough at the job one would have plenty of time to have had their experience overshadow any educational prejudices that came from attending this school or that one. Is it therefore important for diversity of alma mater in the court? Maybe it is, maybe it isn't. Anyone know something about this?
    If one advances confidently in the direction of his dreams, and endeavors to live the life which he has imagined, he will meet with a success unexpected in common hours.
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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Sailor View Post
    But kidding aside, I ask the question, does it matter that most of the justices attended just one or two of the top law schools in their country, or would it add anything for some from other schools to be added to the bench?

    One would think that after the time it takes to become experienced enough at the job one would have plenty of time to have had their experience overshadow any educational prejudices that came from attending this school or that one. Is it therefore important for diversity of alma mater in the court? Maybe it is, maybe it isn't. Anyone know something about this?
    Yale and Harvard Law pretty much having a lock on the Supreme Court bench means that the Court is going be less diverse in the way it approaches issues than it might if the USSC bench was fed by a rather more diverse set of law schools. There's lots of other great laws schools out there — Chicago, Northwestern, Michigan, Indiana, Stanford, UVA, NYU, Cornell, Georgetown, UC Berkeley come to mind.
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    Default Re: Expanding the Supreme Court

    My point, and I think Sailor's, is that Chicago, Northwestern, Stanford, Cornell and the rest are kinda "elite" too. One doesn't get to be a ranking and highly respected judge elsewhere in the system (hence becoming eligible to be nominated, in a normal universe) without becoming "elite" in the process, wherever they got their degrees.

    I agree that one shouldn't have SCOTUS justices whose degrees came in cereal boxes though.
    If I use the word "God," I sure don't mean an old man in the sky who just loves the occasional goat sacrifice. - Anne Lamott

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    Default Re: Expanding the Supreme Court

    Regardless of how many justices are on the court, IMO, the country is served better is something more than a simple majority is needed for confirmation.

    To my mind, the senate is assbackwards here. Simple legislation ought not need 60 votes. Cabinet secretaries and judges/justices might.

    Or, neither party should get to nominate two in a row. A high ranking member of the other party gets to nominate every other.

    That would require a change in our constitution, but we cannot have lifetime appointments be done by a party line vote.
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    Default Re: Expanding the Supreme Court

    I fear that some on the right will encourage Democrats to call for a bi-partisan agreement on expanding the court now. Now, means that Trump and McConnell get to pick the new justices.

    Jeff

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by jpatrick View Post
    I fear that some on the right will encourage Democrats to call for a bi-partisan agreement on expanding the court now. Now, means that Trump and McConnell get to pick the new justices.

    Jeff
    That's a good point, and reveals the emptiness of the current "threats" to expand. What is to stop the Republicans from answering in kind when power swings back to them?

    Indeed, consider Harry Reid's decision to remove the filibuster for federal court nominees and allowing a simple majority for confirmations. When the Republicans subsequently won a Senate majority, Mitch responded in kind, for SCOTUS nominees. Neither Gorsuch nor Kavanaugh could have been confirmed under the old rules. The same applies, of course, for the next nominee. Consensus candidates would have had to have been nominated. Instead, you get more ideological judges and the situation the country currently finds itself in.

    The Democrats would do better to win more elections rather than substitute rules changes for a relative lack of popular approval.

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Sky Blue View Post
    It actually is a very good idea. The court has become too important in the political and social life of the country. The death of a single, elderly justice with long-standing health issues should not be cause for political and social upheaval. With more justices this would likely be much less of a concern.

    Also, with the death of RBG, all of the remaining justices attended either Harvard or Yale (RGB attended Columbia, which is also an Ivy). Already unrepresentative, it has become an increasingly "elite" institution.

    The court should be more representative of the people (especially if it will take on a quasi-legislative function, as it is increasingly wont to do).

    Presumably an expansion would make it easier to diversify the court, not just racially, but socio-economically and with respect to gender.

    All of these elements would be beneficial to the court, the country and the people.

    Rather than threatening expansion as a punitive measure, Democrats should instead hold hearings on the issue in an attempt to build bipartisan consensus for it.
    The same reasoning could (and should) be used for expanding the House of Representatives. We have a much greater population since last expanded; it would result in a more equitable represantation and the gerrymandering problem would be effectively solved.
    Steve Martinsen

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Sky Blue
    Rather than threatening expansion as a punitive measure, Democrats should instead hold hearings on the issue in an attempt to build bipartisan consensus for it.
    Nonsense. If the Democrats win the presidency and senate while holding the house they should ram this down the deplorable’s throats.

    See: https://www.courier-journal.com/stor...ht/5844241002/
    .4
    Last edited by Tom Montgomery; 09-21-2020 at 06:11 PM.
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    Default Re: Expanding the Supreme Court

    It's been suggested that the number of SC justices could double with real advantages and few problems. An advantage of a larger SCOTUS could be that small panels of the justices, randomly selected just as appeals courts are conducted could hear more cases that don't currently get accepted. That process could also diminish the political reasons, calculations and expectations currently at play since the deciding panel wouldn't be known with certainty ahead of time. More judges could also diminish the polarization we currently experience since the mix of and pressure on individual justices could be less.
    “Eventually, all things merge into one, and a river runs through it. The river was cut by the world's great flood and runs over rocks from the basement of time. On some of those rocks are timeless raindrops. Under the rocks are the words, and some of the words are theirs."

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    Default Re: Expanding the Supreme Court

    I was as shocked as anyone to see ol' blooie endorse an idea that I can wholeheartedly agree with... possibly, for different reasons. Actually, I was planning to launch a thread to expound on the idea, until I spotted his.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default Re: Expanding the Supreme Court

    As a Yale man I’m opposed.

    Eh. There’s no reason why 11 or 7 is better than 9. I’d be in favor of either a mandatory retirement age or term limits. Why not nominate and confirm like the Federal Reserve? Stagger it so every President gets to pick one every three years...the longest a justice could serve us 27 years then you’re off. If someone dies or resigns you get your pick early but you don’t get an extra pick. If you made it every two years that would be too fast as every two term President would get four picks.

    And don’t just make it a Supreme Court thing. Make it apply to Appellate Courts too. District Courts should be “a point whenever they open up”. District Court judgeships aren’t as politically important.

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    Default Re: Expanding the Supreme Court

    Now there you go, making sensible points. SOB.

    In my defence, you think any likelihood exists for agreeing to a sensible and fair process, instead of something a bit effective yet impressive? Like making the court 15 members, and thus harder to game with 1-2 appointments?
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    Default Re: Expanding the Supreme Court

    [QUOTE=Tom Montgomery;6280000]Nonsense. If the Democrats win the presidency and senate while holding the house they should ram this down the deplorable’s throats.

    Ah, let the healing begin

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by TomF View Post
    Now there you go, making sensible points. SOB.

    In my defence, you think any likelihood exists for agreeing to a sensible and fair process, instead of something a bit effective yet impressive? Like making the court 15 members, and thus harder to game with 1-2 appointments?
    My ex-wife was a clerk on the Minnesota Supreme Court, which has 7 members. One of the critical aspects of the court was the art of creating a majority by consensus in the contentious cases, which are often the important ones. I wasn’t there but I think a larger court would have less conversation and less comity. At 15 it would act more as a legislature. And we can see how that turns out.

    I would say minimum necessary to do the job and large enough to avoid having an executive impose their will. Five seems too small, 13 too big. (It’s a reproducible result that group dynamics become forceful at 12 people). So 7, 9, or 11.

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    Default Re: Expanding the Supreme Court

    =David W Pratt;6280042

    Ah, let the healing begin
    I think you're confused. When one side is more interested in good governance, and the other is more interested in power... no healing is possible. Only degradation is possible. And that's what's been happening. Increasing gerrymandering. Increasing voter suppression. Increasing roles for corporate interests in the halls of government. Increasing cynicism (undertandably) among the electorate. Etc. Etc.

    So it's an entirely plausible position that the good governance side has to take time out to play power politics long enough to slap down the cynical/greedy side. And THEN healing might be able to begin.


    https://www.yahoo.com/news/supreme-c...233601756.html

    “Everything is on the table” to stop President Trump from creating a hard-right majority on the Supreme Court, Nan Aron, president of one of Washington’s leading progressive advocacy groups on justice issues, told Yahoo News on Monday. This might include expanding the number of justices on the court should Justice Ruth Bader Ginsburg’s seat be filled before the election or in a lame duck session should Joe Biden win.

    “At this point, if they ram through another justice on the Supreme Court, they’re essentially saying, ‘Look, these are politicians in judicial robes, we’re going to see the court as a political institution,” Aron, president and founder of the Alliance for Justice, told the Yahoo News “Skullduggery” podcast. “Six justices will represent just a small segment of the American population. I do think in that instance it's important to reassert balance on the Supreme Court.”

    Aron is helping to spearhead the left’s effort to block Republicans from filling Ginsburg’s seat. She said Republicans appear to have the votes they need and that expanding the court’s size may be the only way to ensure the Supreme Court more accurately represents the country.Senate Majority Leader Mitch McConnell. (Kevin Lamarque/Reuters)“It will be absolutely necessary to ensure everyday people get a fair shake at the Supreme Court,” Aron said, referring to expansion. “Republicans see the courts as pathways to power. Democrats see the courts as pathways to justice.”
    Last edited by David G; 09-21-2020 at 08:35 PM.
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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by C. Ross View Post
    Eh. There’s no reason why 11 or 7 is better than 9.
    I would respectfully disagree.

    An examination of voting patterns in the 9 man court reveals a lot. While I used to believe that 5-4 ideological splits were trending higher over recent years, a study I read proves that not to be the case. Regardless, each year, from 20-30% of all decisions end up as 5-4 splits... and along ideological lines. In fact, if you examine ALL decisions, and look for patterns of alignment, you'll see that the justices strongly tend to vote with their ideological cohorts.

    The problem is that a relatively 'small' court can more often result in the ideological alignment of the court being turned 180 degrees by just the nomination and confirmation of a single justice... and what is going on right now, I think, proves the point. In a 15 person court, the likelihood of a persistent 8-7 split is far lower, and no single justice would be likely to drastically alter the judicial philosophy of the entire court.

    Furthermore, the court could be dramatically more efficient, with more members. Circuit courts operate with as many as 29 members, and most decisions are put before a randomly assigned tribunal of just three justices... resulting in far more cases being able to be covered. As it is, the 9 person court can take on only a very small number of significant cases... and once again, the ideological alignment of the court results effectively in a 'thumb on the scale' in terms of what cases are taken. In an enlarged court, cases could still be adjudicated 'en banc', for sufficient reasons... but there would be no need to either clog the court for minor cases... or refuse to hear cases which might not be all that significant, but nonetheless deserve adjudication.

    We should all stop fooling ourselves; we can listen to Chief Justice Roberts disclaim any political constituent to the court's practices and behavior.... but we don't have to believe him. The Supreme Court is a political branch of government, just like the other two.

    One more point I'd like to make: the most likely nominees being considered by Trump are two women, both with strong and relatively far right judicial philosophies. Merrick Garland, who was Obama's nominee that was never even given a hearing, was a liberal... but one vastly closer to the center. He was approved 76-23 by the senate, when nominated for the US Court of Appeals for the DC Circuit. Now, we all are well aware of just how polarized our politics have become, but it's worth noting that Obama, instead of nominating some fire-breathing socialist, nominated a man who many Republicans had approved of once before....

    ...in today's political environment, I doubt we will see ANY sort of compromise or moderate candidate again... until this phase of extreme polarization ends.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default

    I find the whole idea that politicians select the judiciary revolting. It corrupts the judiciary, as candidates are clearly competing for this executive favor. It also corrupts the executive. As we have seen many voters will pass over a whole list of reasons to reject a poor president, voting for him only for the court appointments.

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    Default Re: Expanding the Supreme Court

    Yes.

    I thought RBG did go to Harvard. But had to get her degree at Columbia because Harvard wouldn’t give her one.

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by StevenBauer View Post
    Yes.

    I thought RBG did go to Harvard. But had to get her degree at Columbia because Harvard wouldn’t give her one.
    They way I heard the story was that she transferred when her husband took a job in NYC. But Harvard had made their 'welcome' clear. The Dean of the Law School, iirc, took the women students to dinner and asked them why they were there, taking a slot a MAN could be filling.
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    Default Re: Expanding the Supreme Court

    I'm with Chris on this one. Nine is fine. I'd suggest any attempt to increase the size is strictly political. Would any Senate majority pass such legislation if the President was of the minority party? I doubt it.

    If having nine politically appointed judges is bad, more will only be worse.
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    Default Re: Expanding the Supreme Court

    It may be necessary to increase the size of the court to maintain a balance. I wouldn't take it off the table unless the existing judges were the ones I wanted.

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    Default Re: Expanding the Supreme Court

    Expanding the SCOTUS would have to be done carefully, I reckon it'd be a mistake without obvious bias being demonstrated first.
    It'd rhyme too closely with 'Deplorables'. You don't like a certain branch of people, so you treat them as irrelevant.

    However, its not as bad as making the SCOTUS so utterly partisan (one sided) and extreme. If there was a chance of moderate nominees this conversation probably wouldn't be happening.

    For moderate or protesting 2016 Trump voters...... and 2016 non-voters..........
    Not only do you get the President you deserve, you get the SCOTUS you deserve too.
    It's all fun and games until Darth Vader comes.

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    Default Re: Expanding the Supreme Court

    as I always like to remind people: Be careful what you wish for.
    "If you think you are too small to make a difference, try sleeping with a mosquito"

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by BrianW View Post
    I'm with Chris on this one. Nine is fine. I'd suggest any attempt to increase the size is strictly political. Would any Senate majority pass such legislation if the President was of the minority party? I doubt it.

    If having nine politically appointed judges is bad, more will only be worse.
    Of course it's political. AND the natural consequence of McConnell leaping - in rather dramatic, startling, and cynical fashion - in that direction, almost 4 years ago.

    You ever hear that old saying, 'Don't want none? Don't start none.'??

    But until you can show me how you spoke out against the R move that started things in this direction... you'll have to forgive me if I regard your current lament about 'politics' as... too convenient. Perhaps even hypocritical?
    Last edited by David G; 09-22-2020 at 12:28 PM.
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    Default Re: Expanding the Supreme Court

    I'm glad that Biden and most of the Democratic leadership is against expanding the court and also glad that Democrats will nominate people of sober judicial temperment and not activist idelogues.

    I've been a community organizer, an advocate representing low income people in administrative hearings, and a hearing officer. I never represented a corporate interest. I know personally the difference between judging matters of fact and law versus agitating to change the law. I also know the difference between reason and casuistry. A person may be politically liberal or politically conservative but those biases should be left at the court house door.

    Appellate court levels deal with matters of law, not fact. In other words, matters where competing legal and social valued must be dealt with. For example, in general we favor majority rule but we have various rights to protect against a tyranny of the majority. In our evolving laws, human rights and property rights are often in conflict. It is often assumed that conservatives are more concerned with property rights while liberals care more about human rights but among the great judicial minds it's not that simple.

    If the Democrats are victorious in November, they should depoliticize the federal courts by selecting people who approach matters judicially, case by case on the merits, and not to further an ideology.

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    Default Re: Expanding the Supreme Court

    Quote Originally Posted by Ian McColgin View Post
    ...If the Democrats are victorious in November, they should depoliticize the federal courts by selecting people who approach matters judicially, case by case on the merits, and not to further an ideology.
    Trouble is, Ian, that in itself will be seen as deeply political.

    Let's imagine, for instance, that instead of the federal court we were talking about the EPA. The Trump-era administrative appointments and reorganizations in the agency have not been about embodying this or that difference in approach among the range of opinion about how to best do environmental protection. The appointments have de facto been about dismantling the agency, crippling its ability to fulfill its role as determined by Congressional legislation.

    In that context, appointing any actually EPA qualified person is "political." Insisting on a senior official meritocracy and credential in the subject matter of the agency is seen as itself a virulently partisan act, a vicious repudiation by Democrats of Republican choices, and hence something to be undone by the next administration. So any meaningful adjustments of approach between EPA-committed conservatives or EPA-committed liberals can't occur. The present Republican position means that an EPA-committed conservative leader would be vilified as a Socialist.

    It wasn't always so, but it is so now.
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    Default Re: Expanding the Supreme Court

    It will not work if the Dems nominate judges based on a meritocracy - and their ability to reflect a range of progressive-through-moderate perspectives .... if the Reps don't also nominate judges based on a meritocracy. And those nominees to reflect a range of moderate-through-conservative perspectives.

    When only one side values merit above other considerations, it will be impossible to achieve a balance on the bench.
    If I use the word "God," I sure don't mean an old man in the sky who just loves the occasional goat sacrifice. - Anne Lamott

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