Testifying before Senate Judiciary Committee Hearing on Nomination of Merrick Garland to be Attorney General

I support Judge Garland's swift confirmation, but will flag three DOJ policies he should maintain.

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I am honored to testify as an outside witness for Judge Garland's confirmation hearing. I support Judge Garland's swift confirmation, but will flag three current DOJ policies that he should maintain. You can watch the video of the hearing here.

Here are my prepared remarks:

Chairman Durbin, Ranking Member Grassley, thank you for inviting me to testify. My name is Josh Blackman and I am a constitutional law professor at the South Texas College of Law Houston.

I support the confirmation of Judge Garland. He should be swiftly confirmed. In my brief time today, I will discuss three current DOJ policies that I hope Attorney General Garland will maintain. First, DOJ lawyers should not give legal effect to so-called "rulemaking by guidance." Second, Attorney General Garland should carefully scrutinize consent decrees, especially those reached through so-called "sue and settle." Third, DOJ should not resume the settlement practice of giving "third party payments" to nonparties; that money should be restored to the Treasury. These three issues may seem fairly low-profile, but each practice will have a huge impact on the separation of powers. And these issues should be important to people on both sides of the aisle. I hope that Attorney General Garland will retain current DOJ policy with respect to these three issues.

First, the Department of Justice should not enforce "rulemaking by guidance." In the past, federal agencies avoided the formal rulemaking process, and instead issued various guidance documents. For example, substantive changes to the law were made through "dear colleague letters," "frequently asked questions," and even online bulletins–what I called government by blog post.  These guidance documents are not supposed to have the force of law. However, courts grant Auer deference to this "subregulatory dark matter." In 2018, Associate Attorney General Rachel Brand instructed DOJ lawyers to not treat violations of guidance documents as violations of the law. And President Trump signed Executive Orders 13891 and 13892, which ordered other agencies to adopt the principles from the Brand Memo. Unfortunately, President Biden rescinded those two executive orders on his first day in office. At present, the Brand Memo is still codified in DOJ regulations. I hope that Attorney General Garland will maintain the Brand Memo.

Second, Attorney General Garland should carefully scrutinize consent decrees. These agreements include intricate requirements that DOJ could never impose through regulation or litigation. And these consent decrees can exist in perpetuity. During this time, federal judges and court monitors can oversee state and local governments. Such agreements raise distinct federalism concerns. Indeed, many of these agreements arise from a practice known as "sue and settle." Organizations and local governments would sue a like-minded agency, knowing there was no adversity, and reach favorable settlements. Fortunately, Attorney General Sessions took actions to restrict these consent decrees. The Justice Department imposed restrictions on consent decrees, including limits on duration, sunset provisions, and means for termination. Critically, under Attorney General Sessions's guidelines, a consent decree could not be used to achieve a policy goal that could not be obtained through litigation. I hope Attorney General Garland will maintain this policy. 

Third, the Department of Justice should return any excess settlement funds to the United States Treasury, rather than make "third party payments" to progressive groups. These payments have been criticized as "settlement slush funds." The federal government has allowed billions of dollars to be given to third-party non-profit organizations. These special interest groups were not parties in the litigation, and were not victims of the misconduct. Indeed, Senator Grassley has observed that the Justice Department directed funds at organizations that Congress had defunded. In this way, the executive branch bypassed the Constitution's appropriations process. In 2017, Attorney General Sessions prohibited the inclusion of "third party payments" in settlements. Any excess funds from settlements would be restored to the United States Treasury. Attorney General Garland should maintain this policy. 

Thank you for your time, and I will be happy to answer any questions.

The other witnesses will be:

Mr. Wade HendersonInterim President And CEO
The Leadership Conference on Civil and Human Rights
Washington, D.C.

 

Ms. Andrea Tucker
Parent Of Students At J.O. Wilson Elementary School
Washington, D.C.

 

The Honorable Ken StarrJudge (Retired)
Waco, Texas

 

Ms. Donna Bucella
Former Director, Executive Office For United States Attorneys (EOUSA) And Former U.S. Attorney For The Middle District Of Florida
Irving, Texas

Update: Here is my testimony.

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  1. “First, DOJ lawyers should not give legal effect to so-called “rulemaking by guidance.” Second, Attorney General Garland should carefully scrutinize consent decrees, especially those reached through so-called “sue and settle.” Third, DOJ should not resume the settlement practice of giving “third party payments” to nonparties; that money should be restored to the Treasury.”

    Isn’t it a foregone conclusion that these three things are exactly what Garland is planning to do?

    1. I’d guess he’s supporting Garland’s nomination on the basis that any replacement nominee would likely be even worse? Because it’s pretty much a given that Garland is going to reverse all these reforms, and then some.

      It’s going to be a nasty 4 years, I hope everybody who opposed Trump has the decency to own them.

      1. Two years — and then you’ll see what happened in 1994 and to a lesser extent in 2010.

        Biden’s coalition is already splintering — and transgender athletes will split the feminists, immigration will split the Blacks & legal Hispanics. The Keystone Pipeline has already split the Teamsters.

        Our economy is imploding, it’s now taking the Post Office two weeks to get a letter from Bangor, ME to Boston, MA, the stock market can’t help but crash, and our children have missed over a year of school.

        18 months from now, things are going to be a real mess — and the MAGA movement will remain without Trump.

        I think we only have two years to endure, but it ain’t gonna be pretty.

        1. That really depends on what they do with regards to HR 1. With 222 co-sponsors, I doubt they’re going to let it die.

          And they still have time to rush through statehood for D.C. and Puerto Rico.

          Regardless, there’s a lot the administration can do without any legislation at all. Expect Operation Choke Point to be reactivated, for instance.

          1. DC and Puerto Rico should be states, it’s time to stop having second class citizens. It’s only tribal partisanship arguing otherwise.

            1. Or worse, fascist sensibilities. Look at Tom Cotton’s speech on the subject: DC voters don’t deserve a vote compared to the hardworking Volk of Wyoming.

              https://www.cnn.com/2020/06/26/politics/tom-cotton-wyoming-dc-statehood/index.html

              1. DC statehood is unconstitutional as is.

                We should send PR on its way and let it be totally independent of us.

                I’d support federalizing the government buildings and then shoving DC into Maryland. But its own state? Screw that noise.

                And Libertarians for Biden’s picks seem a lot like “hopefully they get me last” belief that, hopefully, will lead to massive suffering on the part of said libertarians.

                1. This libertarian reminds you that any libertarian who supports Joe Biden or any of his picks or anti-racism or AOC or black history month or blm or the church of covid or mask mandates or RINOs is not a libertarian.

                  1. Libertarians: politically, we offer fuck-all.

                  2. Libertymike, that’s a lot to oppose on the basis of a label. What puzzles me is, where is the ideology to go with the label?

                    Try this for me, please. Leaving aside opposition to anything, tell me what the libertarian theory of government is. I just want to hear what libertarians stand for—what they want government to do. Remember, no saying, “We’re against this, or we’re against that.” Just what you want government to do. Tell me that. See if you can come up with anything remotely like a libertarian theory of government.

                    Alternatively, just say libertarians haven’t got a theory of government, and then explain why anyone should listen to so much complaining from folks who refuse to say what ought to happen.

            2. DC statehood is dubious constitutionally as is. And why SHOULD Puerto Rico be a state? They do not bring much to the table for the country overall.

              We should send PR on its way and let it be totally independent of us.

              1. “And why SHOULD Puerto Rico be a state? They do not bring much to the table for the country overall.”

                See? Conservative fundamentally don’t understand democratic values.

                1. Send them on their way. You’re not OWED statehood. Let them become independent and make it on their own, as it should be. Wash our hands of the problem.

                  1. The problem that we created by our imperial ambitions?

                    1. We got Cuba and the Philippines in the same deal.

                      Those two countries are independent.

                    2. The people of PR are US citizens. Our nation is built on the principle that a basic human right is representation for our citizens.

                    3. Then let them choose, LTG.

                      Oh, that’s right. They DID choose to remain a US possession not once, not twice, but three times. PR specifically rejected becoming a state. If they want statehood, let them vote for it, and accept whatever terms Congress places as a condition of entry into the union.

                      I have no philosophical objection to PR voting to become a state.

                  2. Maybe we should send Mississippi on its way.

                    Again, it’s just partisan tribalism. PR are Americans, Americans should have representation. That’s what our nation is built on.

                    But of course conservatives hate what this country is built on, or rather it’s less important than power. Authoritarians love power for its own sake.

                    1. “Maybe we should send Mississippi on its way.”

                      40% are black.

                    2. And 47% of DC is, which is a big part of what this about of course.

                    3. ‘40% are black.’

                      Yeah, no way should they be left to the tender mercies of gerrymandering, vote suppressing Republicans.

                    4. Stunning insight, Bob. Really, just blowing us away every day with your wit and intelligence.

                2. Neither the unanimous declaration nor the federal constitution were predicated upon filthy, iniquitous, and smelly democratic values.

                  1. Libertymike, why bother with history if you don’t know the history, and don’t read the documents. Both say explicitly that they are based on democratic values—specifically on the value of popular sovereignty on majoritarian principles.

              2. You could say the same about Mississippi, Alabama, or Arkansas. What do they contribute to the country overall?

                1. Again, they don’t understand democratic values. It’s not a question of ‘what do they contribute,’ it’s a question about whether we should have hundreds of thousands of second class citizens.

                  1. Again, they don’t understand democratic values.

                    Such lazy language. I could just as readily say you understand nothing about (or perhaps just eschew the hard work required to grapple with) limiting principles.

                    1. No one is invoking limited principles – people are instead using utility arguments, which is nondemocratic.

              3. And why SHOULD Puerto Rico be a state? They do not bring much to the table for the country overall.

                3.194 million US citizens.

                That said, if you’re worried about what a (prospective) state “bring[s] to the table”, I feel I should point out that Washington D.C. beats out quite a few states in GDP, and every state in GDP per capita.

                So perhaps we could make a game of it? At the time of the census, all states and territories are evaluated based on what they “bring to the table”, and only the 50 most “productive” get to be states, and everyone else gets to be a territory for the next ten years.

                To spice it up even more, we could formalize a procedure for states to sub-divide into territories, letting areas that “bring [more] to the table” jettison the unproductive parts of their states.

                Yes… I see no problems with this plan†. Statehood should be based on a capitalistic determination of worth, and nothing more. Nothing could go wrong with this at all.
                ________
                †This is a lie.

            3. DC should be returned to Maryland except for the Mall area. Problem solved.

              I thought you guys hated small states having 2 senators? DC would be the 4th smallest state.

              1. He himself hath said it. By Bob’s own account a population larger than three current states doesn’t deserve representation.

                1. It deserves representation as part of a state.

                  It does not deserve 2 US senators.

                  1. They deserve it more than Wyoming does.

                    1. “They deserve it more than Wyoming does.”

                      No reason to make the same mistake. But its ok because you want the two certain Dem votes.

                      Hypocrisy disguised as virtue.

                    2. It’s not a mistake to give Wyomingians representation. Ditto for DC and PR. It’s democracy.

                      But, again, I get that you don’t get that/value it.

              2. Yeah, that doesn’t really solve the problem. Per the 23rd amendment, whatever part of DC still existed would still be entitled to 3 electoral votes. Even if it was just the Capitol, White house, and Mall.

                You’d have to either completely abolish the District, so the 23rd amendment would have nothing to apply to, or, ideally, repeal the amendment.

            4. The residential neighborhoods of DC should be given back to Maryland — in neighborhoods like Takoma Park, it is damn difficult to tell what is DC and what is MD as the state line literally runs down the middle of streets.

              As to Puerto Rico, they are not going to *want* statehood when they realize that they will now have to pay Federal income tax, and lose all of their pharmaceutical industry because it is way more expensive to manufacture on an island 500 miles offshore and without the tax breaks, it becomes way cheaper to manufacture in Kentucky.

              And by Queen Amalthea’s theory, Northern NY, Northern NH, and Northern Maine all ought to be independent states as well, as voters there are all second class citizens as well.

              1. “And by Queen Amalthea’s theory, Northern NY, Northern NH, and Northern Maine all ought to be independent states as well, as voters there are all second class citizens as well.”

                Nope, they can vote for representatives and Senators. Again, see, conservatives really can’t fathom the basic democratic values our nation was built upon.

              2. They don’t want statehood, that’s been clear for some time. They want independence even less.

                That’s why the independence party there keeps running hinky ballot referenda where the only choices are statehood or independence, with continuing the status quo eliminated as a choice.

                1. It should be up to them, otherwise it’s a violation of fundamental American values.

                  And Republicans need not crap on that values because of tribal partisanship, it wasn’t that long ago that PR had a Republican governor (his wife was a featured speaker at a GOP convention). The GOP could compete there (if they give up their opposition to them having basic American rights).

                  1. Like I said, hinky ballot initiatives where the only choices were statehood or independence.

                    Surely you’re aware of the classic problem of ballot language not reflecting the legally binding text of an initiative. Here is the actual legal language.

                    The relevant text: (Translated by Google.)

                    “The vote of each elector for statehood “No” will mean: “I reject the permanent union with Statehood and claim that the Federal Government immediately recognize the sovereignty of Puerto Rico separated from United States of America with a “Treaty of Independence in Free Association ”or with“ Total Independence ”.”

                    “Once the results of this plebiscite are certified by the State Commission of Elections …

                    In the event of Statehood “No” being the majority alternative, you must immediately begin a transition process for recognition of the sovereignty of Puerto Rico separated from the United States of America with a “Treaty of Independence in Free Association” or with the “Total Independence”, as described in the Law.”

                    1. AKA, “shit or get off the pot”.

                      I don’t see a moral or ethical problem with telling Puerto Rico (and indeed, all US Territories) that they need to either work for statehood or independence.

                    2. In principle I don’t see any problem with telling, PR, “Look, we’re not interested in maintaining this halfway status any longer. Statehood or independence, pick one, and if you can’t make up your mind, it’s gonna be independence.”

                      But don’t do it pretending that you’re doing it to give them what they want: What they want is to stay on the pot and not shit.

                2. I don’t think it is the independistas that sponsored those votes. They routinely poll in the single digits in elections and hold no real political power. The PNP advocates statehood, and currently holds the governorship. The PDP advocates continuation of an association with the US.

                  1. No, the statehood advocates sponsor them, and try to arrange things so that the only alternative to statehood is independence, because statehood always loses if the status quo is an available choice.

                    1. One great alternative to statehood is immigration en masse to Florida. Where ex-Puerto Ricans can vote immediately.

              3. Here’s a better solution, taken from a Harvard Law Review note: make each of the residential neighborhoods of DC a federal territory, saving only the federal part for DC. Then make each territory a state. That solves all constitutional problems associated with making DC a state and adds a dozen more states to the union.

            5. dc should never be a state

              1. 700,000 second class citizens.

                1. There was a sound reason for creating D.C.. In fact, a couple.

                  The first was so that the central government wouldn’t be dependent on any one state, but the second was so that no one state would particularly benefit from the central government.

                  It was to make the capitol less vulnerable to state interference, AND reduce the chance of one of the states being especially partial to the federal government because it got special treatment.

                  The second reason is already totally blown, both Virginia and Maryland have halfway been taken over by the spillover from DC. But the first reason is valid.

                  Retrocession of the residential areas to Maryland is the obvious solution.

                2. “700,000 second class citizens.”

                  Who have the highest median income in all of the 50 states + DC. Easily.

                  Must be nice to be a “second class citizen”

                  1. Money is no substitute for rights.

                    1. Nothing prevents them from moving to Maryland or another state. There’s nothing second class about their citizenship.

                    2. Indeed, the District is so small they could easily WALK to another state. That they don’t leave is proof of exactly how much they value the vote.

                    3. You must relocate to get your rights is also not how rights work.

                3. Except for the small federal district, DC needs to be absorbed into VA and MD

            6. Puerto Rico can be a state anytime they want to. The fact that they keep voting against statehood should give you pause. It’s patronizing to call it “second class” when that’s what they really want.

              DC should never be a state because there are far too many conflicts of interest. DC was created as a stateless capital city for very good historical reasons. That said, the residential areas of DC should be ceded back to Maryland. DC should be much more concentrated on just the federal properties and operations.

              1. Yeah, good historical reasons like George Washington thought it was convenient to Mount Vernon, and the Potomac River was going to be the principal avenue of commerce between the east coast and the American frontier.

                1. Those are the reasons that location was picked, but they’re not the reasons a district was created.

            7. They should fold DC back into Maryland and Virginia whence they came. If we don’t need an imperial capital enclave under the control of the federal government, then we certainly don’t need a Federal government under the control of an imperial capital enclave.

              Washington and Baltimore are only 35 miles apart and are part of the same metropolitan area. DC is only 10% of the size of Maryland, and would add another congressional district to MD.

              1. Neither DC nor Maryland wants that.

                If PR gets a say, then DC should, no?

                1. No, and you undersatnd why. But the District could be divided into the very small Federal district and portions ceded to VA and MD.

                  1. The Va portion was ceded back a long time ago.

                    All the existing district was part of Maryland

                  2. No, I don’t understand why.

                    Forcing DC into MD when neither wants that seems pretty screwed up.

            8. PR should be a free country. The US never had a right to the island..period. Culturally it is not part of the US and should be allowed it’s independence. DC is not a State and shouldn’t be. If you want that then move the Federal Capital to someplace else that becomes a “federal city”..I would recommend say in Iowa or Utah or Texas. And if DC becomes a State it is time to allow other parts of States to form their own or at least allow “red counties” in NY, Illinois, PA and so on move to free states…Hell most of western WA and Oregon can move to Idaho…or we can just all go our own way…Free States and Bolshevik States…

        2. Nostradamus Ed strikes again!

          Future ages may wonder what happened to his predictions of a Second Civil War, but no seer can get’em all right, Instead they’ll be astounded at Ed’s prescience in seeing “transgender athletes” were the start of Biden’s downfall!

          1. You apparently don’t know any lesbians…

            1. It’s very telling you equate “transgender” with “lesbians.” Not the same thing, doc.

              1. Ah, but you scarcely do Ed full justice. In his febrile imagination, angry lesbians will be the harpies that drive Biden into exile & ruin. Those lesbians are female athletes enraged over transgender athletes.

                (An aside : “transgender athletes” are a fiery obsession in the right-wing hive-mind right now. To paraphrase Churchill, never have so many worried over so few. My opinion? I bet Ed is terrified some person born with woman parts will beat him at shot put or on the basketball court)

                So you see? It’s female athletes that equal lesbians. I’m sure in Ed’s mind that just stands to reason. If they weren’t lesbians they’d be home cooking corn pone for their Man – not off somewhere doing some sweaty lesbian athlete thing.

                1. “Those lesbians are female athletes enraged over transgender athletes.”

                  There is a certain amount of political friction at the moment between feminists and guys pretending to be women intruding into women’s spaces, going back at least 6-7 years. I don’t think I’d agree that all feminists are lesbians, even though there’s a little bit of truth to that stereotype.

                  1. Brett Bellmore : There is a certain amount of political friction at the moment between feminists and guys pretending to be women intruding into women’s spaces, going back at least 6-7 years.

                    There is a microscopic (if not sub-atomic) amount of political friction between feminists and transgender athletes going back a half-century. There will be future Renée Richards, just as there were ones in the past. The Republic will endure.

                    The running Right-wing fixation with transgender athletes is funny; Ed’s hysterical predictions on the topic are hilarious.

                    And – yes – Brett, there’s a little bit of truth to saying “all feminists are lesbians”. Statistics-wise, it’s probably the same as saying “all women are lesbians”.

                    After all, you can find a “little bit of truth” wherever you look with statistics, right?

                  2. The current obsession with transgender folk started around 2013, when Windsor v. United States was handed down. Republicans saw the writing on the wall, and went looking for a new topic to keep their base riled up, and found it in trans folk.

                    And suddenly, the accommodations that had slowly been expanding for trans folk for years, became a big issue for conservatives.

                    But hey, pretend it was an organic and genuine “friction”, and not entirely manufactured by cynical conservatives.

        3. ……it’s now taking the Post Office two weeks to get a letter from Bangor, ME to Boston, MA….

          Credit Louis DeJoy and the Trump appointed governing board for that, which will only get worse under their new plan. The Post Office should be privatized and most of the workers fired.
          https://www.washingtonpost.com/business/2021/02/12/dejoys-new-plan-usps-slower-mail-higher-prices-sources-say/

        4. Do conservatives realize that when you list all these things that are wrong in this country now, that they are reflecting the previous administration and its policies? Biden’s been in office just over a month; very few of his actual policies have been able to be enacted in legislation or regulation, and they’ll take even longer to actually be implemented and have an effect. The Post Office has taken longer and longer to deliver mail for the past year because Trump’s Postmaster General was gutting it. That’s the whole reason mail-in voting was such a hot-button issue 6 months ago. That’s why the Pennsylvania Supreme Court extended the deadline for voting. Where were you then? Didn’t give a shit then because it benefited your tribe in the election, but you can’t wave it around now like it’s Biden’s fault and expect that to be a convincing point.

        5. Biden’s coalition is already splintering — and transgender athletes will split the feminists, immigration will split the Blacks & legal Hispanics. The Keystone Pipeline has already split the Teamsters.

          Someone who describes them as “the Blacks” clearly has his finger on the pulse of minority opinion.

      2. Remember when Ollie North redirected profits from arms sales to the Contras, to get around Congress’ power of the purse?

        But these slush funds are different because reasons and it’s a different side.

        How about both are wrong, then and now?

        Nah. Didn’t think so.

        1. Well TBF on a moral level, funding death squads that rape and murder civilian populations is much much worse.

          1. …then removing a Communist dictatorship that was doing worse?

            The options do not exist in a vacuum.

            1. Cool. How much rape is worth getting rid of a communist dictatorship?

              1. Given that the rape was greater on the Communist side…it was worth it.

                1. So you don’t see any moral problem with funding death squads that kill and rape in other countries because it will get rid of a regime that also kills and rapes? So long as the rape and murder victims are your political enemies or other undesirables and the number can be spun to be less than the ruling regime, that’s a-okay?

                  It never ceases to amaze me the depths of moral depravity on these boards.

                  Tell me: how many children would you be personally willing to kill if you could assured that a communist village would collapse?

                  1. Regime* not village.

                  2. “any moral problem with funding death squads that kill and rape in other countries because it will get rid of a regime that also kills and rapes? ”

                    We funded the Soviet Union against Germany because we thought it was the lesser evil. Ask any old ladies from East Prussia about rapes by Soviet soldiers.

                    1. Yeah, and supporting the Soviets was extremely morally problematic. But at least we were actually also in combat with the Germans at time. Not just funding known psychotic killers on a lark like much of our Latin American policy was. I mean we knew that Roberto D’Aubuisson was murdering clergy and engaged in mass killing and torture and still supported him. There was literally no reason to do this. None. Except for the possibility that our own officials are extremely wicked and morally depraved people.

                    2. LTG, one could make a credible case that FDR was extremely wicked and morally depraved, vis a vis his (in)actions saving Jews from certain death. I am sure you know the story of the St. Louis.

                    3. Not many defend FDR’s racial politics, including the implementation of the New Deal.

                      But he also saved America from a socialist revolt.

                    4. That was a dark and terrible time why the FUCK would you want to emulate its extremeties and compromises?

                    5. “But he also saved America from a socialist revolt.”

                      Easy to claim, anyway. How many developed nations actually did have socialist revolts?

                    6. https://en.wikipedia.org/wiki/First_Red_Scare

                      In your need to denigrate FDR, you see to have flipped in your red-baiting. Are you now saying that communism in America wasn’t really a big deal in the 1930s?

                  3. So you don’t see any moral problem with […]

                    What an odd digression this conversation has taken.

                    But hey, here’s my 2-cents.

                    Ultimately, it’s a real-world expression of the classic “Trolley Problem”.

                    Horrors are happening. Take no action, and they continue. Take action, and fewer horrors will happen, but they’ll be your fault.

                    Some people feel it’s more important to keep one own’s hands clean.
                    Some people feel it’s more important to do what we can to reduce the horrors in the world, even at the cost of our own purity.

                    America, for most of the 20th century, and into the 21st century, has largely elected political leaders who fall into the second camp.

                    Run-away patriotism, that thinks our boys and girls in uniform can do no wrong, may fall into your “don’t see any moral problem”. Most people are more nuanced then that, and say “yes, there are moral problems, but we’re putting a stop to worse ones”.

                    Black-and-white morality doesn’t work in the real world.

            2. Is communist murder and rape somehow morally worse than US-funded murder and rape? Also: what the fuck is wrong with you?

    2. Biden has already revoked Trump’s xo prohibiting rule making by guidance. So I expect it to have already restarted.

  2. I was VERY disturbed by the quite asinine distinction Garland made between the Capitol trespass and the attempts to demolish courthouses in OR & WA.

    Garland failed to understand that rendering a courthouse uninhabitable — even if done at night — is going to “obstruct governmental administration” even more than a bunch of rowdy protesters wandering through a building that is otherwise undamaged.

    I mean, like, how many Federal Judges are going to conduct court business while sitting on a milk crate in the parking lot?!?

    Garland doesn’t strike me as a stupid man, which means that he clearly is ideologically biased, possibly worse than Eric Holder was.

    1. Um, um, um.

      I get the impression that he’s actually somewhat embarrassed to be forced to take this position. But he’s doing it anyway, so he’s going to be a loyal wingman.

      1. I got the impression he realized that it wasn’t a defensible position — if I remember correctly, Daniel Shay & Co prevented the courthouses from opening in the first place, not disrupted ongoing proceedings, so Shay’s Rebellion wouldn’t be a “rebellion” in Garland’s book.

        He ought to be embarrassed — would *he* conduct court business while sitting on a milk crate out in the parking lot???

        I think we dodged a bullet with him not on SCOTUS…

        1. It’s an entirely defensible distinction that the DC riot was in furtherance of obstructing the official process of transferring power via a free and fair election. But, of course, conservatives don’t value that so they can’t get the importance of the distinction.

          1. Because burning a courthouse down wouldn’t obstruct any official processes, so long as you did it after hours? That IS how stupid his position was: So long as there weren’t any judges present at the time, the arson attempts weren’t attempts to disrupt the operation of the court.

            1. Besides, Brett, a fire would destroy both paper files and electronic ones. Even trashing the clerk’s offices (i.e. tossing all the paperwork into one big pile and urinating on it) would prevent cases from proceeding, and merely cutting random Cat-5 cables, particularly in not-so-visible places, can seriously f*ck up a network in dimensions unimaginable. (Merely a bad cable somewhere will do that…)

              Heck, you wouldn’t believe how much damage you can do by merely dumping a 30 gallon trash can of water down an elevator shaft…

              1. The only thing Dr. Ed ever said that was true was “You wouldn’t believe [something Dr. Ed claimed.]”

            2. Wait, what courthouse got burned?

              1. They tried hard enough, they just failed. You don’t have to succeed with an attack to be a terrorist, you know.

                1. Or succeed in overthrowing an election to be an insurrectionist?

                  1. A riot it was, an insurrection only in the eyes of one partisan group

                  2. I think insurrection is a stretch in either case, but the point is, it’s the same stretch in both cases.

                  3. A sucessful insurrection has many fathers, a failed insurrection is a riot.

          2. Queen Amalthea, please find me five Federal judges who’d be willing to conduct court business while sitting outside on a milk crate? And as their robes would have been destroyed (or at least rendered unwearable) in the fire, dressed in civilian garb.

            Just five.

            And when you can’t, THEN can you admit that burning down a courthouse obstructs governmental administration???

            1. Again, Brett and Ed demonstrate that the current Right has issues fathoming democratic values. Of course they see not much wrong with the Capitol insurrection, they wanted the vote overturned too.

              1. Five judges willing to conduct a trial while sitting outside in the snowbank.

                I may not agree with how courts rule — often don’t — but they *are* democratic institutions every bit as much as the US Congress is.

                1. Courts are not democratic institutions on the level of Congress, and especially when Congress is operating to transfer power via a free a and fair election.

                  But, again, one can’t expect many conservatives to get this. They don’t value/understand democratic values (in fact, many have mild to strong disdain for them).

                2. ‘Five judges willing to conduct a trial while sitting outside in the snowbank.’

                  Bit weird since their courhouse is right over there, conspicuously unburned.

                  1. And no snowbanks.

              2. You’re going along with downplaying a whole summer of riots, over a billion dollars in property damage, dozens of lives lost, multiple attempts to set federal buildings on fire with people inside them,, and WE are having issues fathoming democratic values?

                You’re just cool with Garland declaring THAT wasn’t terrorism, because they did it after hours, rather than when the judges were present?

                So, what’s the take away from this? That the people who crashed the Capitol building January 6th should have burned it to the ground the previous night, instead, because that would have been less serious?

                1. There’s no downplaying. There is a distinction between the events, however. And you and Ed doing your best impression of a pair of monkeys missing your speak-no-evil comrade isn’t very convincing.

                  One was a series of racially charged demonstrations of riots, which this country has had innumerable instances of throughout its history, and the other was a sloppy insurrection purposefully incited by our former president and his sycophantic cult, which was historically unprecedented.

                  Now that this has been explained to you and Ed, I hope we don’t have to revisit this topic any longer.

                  1. There are distinctions between the events, or else they’d be the same event. But one thing does not distinguish them: They were both terrorism.

                    1. Sure, if you stretch the definition of “terrorism” to the point of meaninglessness.

                      One act was targeted against the very government function they were trying to prevent: the democratic outcome of an election they lost being made official. The other was another run of the mill race riot that this country has suffered many of, due to our complicated history on the matter and continued denialism by the same aforementioned terrorist cult. No specific government function was targeted. There was no office or event for them to attack that would prevent the next cop from killing an undeserving victim and getting away with it.

                      So, now that we have cleared up that little episode of “both sides!”, what other excuse or new goal post do you have? I know that can’t be it.

                    2. Black Lives Matter protests were not terorism. The police responses? Now those were terror attacks.

                    3. “ter·ror·ism
                      /ˈterəˌrizəm/
                      noun: terrorism

                      The unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.”

                      Were the riots in pursuit of political aims? Yes

                      Were they unlawful use of violence and intimidation? Yes.

                      Were civilians targeted? Yes, in this context “civilian” is contrasted with soldiers, police count.

                      There’s no stretching here, it was as clear cut an example of terrorism as it gets.

                    4. Same definition applies to the police, though, only they were armed like the playthings of an idiot man-child tyrant spending the every penny his peasants earn dressing up his toy soldiers.

                    5. Just so we’re in agreement, the police that went marching through civilian neiborhoods that *weren’t* engaged in any rioting, and started taking potshots at people sitting on their own front porches… that’s the “terrorism” from last summer that we’re talking about, right?

                      Or maybe it was when police stormed a public park to break up a violin protest (that is, people were gathered in a public park, playing violins to peacefully protest police brutality), using force, teargas, and so-on. During the daytime (no “curfew” excuse there).

                      Or maybe it was when police cruisers nearly ran over protesters and started destroying boxes of water bottles?

                      Or maybe it was when police parked old police cars a block ahead of a march, and set it on fire, then used the police-car-on-fire as an excuse to attack the marchers?

                      That’s the kind of terrorism you’re deriding, right? Violent action against civilians that are exercising their rights of Freedom of Speech, Association and Assembly, with the intent to squash political dissent and calls for action?

          3. How about the Wisconsin Capital occupation in 2011?

            The purpose there was to prevent the legally elected legislature from passing their legislative agenda.

    2. I mean, like, how many Federal Judges are going to conduct court business while sitting on a milk crate in the parking lot?!?

      Dr. Ed may be unaware that Federal Judges have been conducting court business while sitting at their dining room tables for almost a year now.

  3. OK, those seem reasonable but I’d like to see the Dem’s points on changing these.

  4. Consent decrees are an important means for enforcing civil rights against state and local law enforcement. I mean federalism concerns are supposed to take a back seat when you’re trying to enforce Constitutional rights against recalcitrant departments who don’t respect them. The reason Sessions (and Barr) didn’t like consent decrees is because they had a real problem with civil rights investigations against local police in general. All the stuff Josh is talking about is just the pseudo-intellectual veneer that people like him use to disguise the politics of power and violence.

    They didn’t actually care that departments disregard people’s rights all the time and don’t believe in police accountability at all. “Law and order” has nothing to do with law (or order for that matter) and everything to do with making sure state violence remains a means of controlling undesirables.

    *Unless its the FBI investigating their political allies.

    1. Sue and settle was a real thing, LTG. It can be a pretty effective way of insulating administration regulatory priorities against being overturned by a subsequent administration, or give them the force of law without needing legislation.

      1. I know it is a real thing. But I don’t think that’s why Sessions and Barr didn’t like consent decrees. It was more about insulating cops from accountability. That was the focus. Sessions and Barr have railed against police reform. They just like to pretend there is some higher principle involved.

        1. Consent decrees are a valuable tool that are, generally vastly overused, and also generally abused. One such problematic practice is whenever a State and National Executives are aligned they can engage in a sham sue-and-settle consent decree to nearly permanently get their policy preferences enacted, without review of the legislature.

          The majority of post 2000 consent decrees fall into the sham category.

    2. Assuming that’s not a parody, that’s just wrong on every level. Consent decrees in an adversarial setting (such as local law enforcement “agreeing” to comply with the Fourth Amendment) have nothing to do with the ‘sue-and-settle’ abuses and were untouched by the Sessions policy. Bad police departments are still subject to consent decrees.

      The only things you can’t do are:
      1. Force a consent decree’s oversight long after the original problem was fixed (that is, there has to be some sort of sunset or termination provision – no “indefinite” supervision).
      2. Bypass the legislature (and/or the courts) by “consenting” to a policy goal that the legislature has already rejected or that would be unobtainable through litigation.

      1. Any attempts to reform abuses in consent decrees/sue-and-settle have to be looked at in the context of Sessions and Barr’s own words and policy positions. I am not going to pretend that Sessions and Barr had high minded ideals about remedies when they were known to be extremely hostile to the concept of police reform and civil rights.

        As much as legal conservatives try, they can’t actually separate policy outcomes from the things they say they are going to do. It is not a coincidence that there was only one pattern and practice investigation in the four years of the Trump DOJ and zero voting rights cases. They had hostility to civil rights and made up a bunch of reasons that they weren’t going to do anything about them, which included trashing the concept of consent decrees.

        1. It’s not the 1970s any more. The problem you wish was still around was mostly fixed a very long time ago.

          Meanwhile Yale discriminates based on race. Trump DOJ sued them to stop it. Biden dropped it because Yale is friendly to him and Biden’s geriatric caretakers are all heavily in favor of racial discrimination.

          1. Ah yes, racism has been solved except for affirmative action. Phenomenal argument, I hope the right goes with it.

            1. I am always well and truly staggered at the openness and generosity of the US right when it comes to just sitting down and listening to what minorities have to say and respecting them enough to believe them about their lives and experiences, I really can’t understand how it hasn’t won them more minority votes.

              1. Bigotry has and should have consequences. Republicans spend much of their time striving to avoid those consequences. Better people focus on arranging progress against the wishes and efforts of our vestigial bigots.

              2. You can buy more minority votes with handouts and preferential treatment than you can with offering strict legal equality. And that’s the sad truth.

                1. You can win support from minorities by listening to their concerns and representing them faithfully at a political level, except that’s just how it would be phrased if you were talking about white people – you win white votes by treating minorities with contempt and scathing condescension, apparently

                  1. “by listening to their concerns and representing them faithfully at a political level,”
                    … and then handing out favors and preferential treatment. Got it.

                    Just remember that in 10 to 20 years Hispanics will be lumped into that nasty category of whites. It happened to other Mediterranean people; it happened to Asians.

                    1. The restentment towards black people is astonishing – anyone would think they’d enslaved white people for generations then denied them basic rights for a few more generations and lynched thousands of them and herded them into urban hellholes that were flooded with drugs and now get utterly furious if anyone brings this history up and dares to suggest it has had lingering negative effects on society, and not the other way around.

                      (Regional European racism has always been a thing, but the only people who ever got to decide whether other Europeans were or weren’t ‘white’ were white Europeans.)

            2. Your racism goes much farther than the racial discrimination of affirmative action I am sure

              1. Your telepathy has foiled me again!

                *twirls mustache racistly*

            3. Why did Asians do to deserve being treated as second class by people like you?

              1. Interesting you think college admission is part of citizenship, but voting is not.

                1. Both “citizenship” and “voting” are weird out-of-the-blue changes of subject.

                  What’s wrong with Asians being treated the same as every other race? You still didn’t say. Apparently you think they don’t deserve to be first class Americans protected from discrimination. Clearly Biden’s handlers don’t think Asians deserve the same as others.

                  I’m for all Americans being treated equally without discrimination based on their race, BTW. You should be too. Everyone should be. It’s basic kindness and respect.

                  1. Ben_, nobody believes you. Everyone can see the feigned concern of white right wingers for the plight of beleaguered Asians—who already get deserved admission to elite universities out of proportion to percentages in population. Everyone understands that feigned white right-wing concern is all about a flank attack on affirmative action for blacks. No one is fooled.

                    1. The “everyone” you talk about are:

                      1. Incorrect.
                      2. Those people sound like bigots. Who else besides bigots assumes such things in defense of discrimination against minorities?

                      Discrimination against people based on race is bad, Stephen Lathrop.

                      An Asian individual is an individual. He or she shouldn’t face discrimination because people like you don’t approve of too many of their racial group at Yale.

                    2. Of course the perennial quandary of how many people of different races were and are represented in Yale, and how many should be, and how to make that come about, was entirely created by white people, so spare your ire for those jokers. For some reason they discriminated less against Asians, which is no reflection on Asians.

                    3. Why are Biden and his cheerleaders and handlers so happy to enable and support racial discrimination?

                      And when are people going to develop a conscience and demand that they stop it?

                      Answers:

                      1. The progressive religion doesn’t value Asians very high in their ranking of races.

                      2. They’ll develop a conscience for show when the people in their social circle tell them it’s fashionable to put on such a show. The minute it’s no longer fashionable the show is over and the pretense disappears.

                    4. So you’re saying YOU don’t value black people and other minorities, only Asians? That’s messed up, dude.

                    5. Ben_ , performative crap may work fine to support solidarity among like-minded liars. It won’t work at all on anyone else, because no one suspends disbelief while watching bad performances.

  5. But the left is salivating over 4 more years of doing exactly these things. Legislating open borders by consent decree, etc.

  6. Garland will be kind to criminals. He will do nothing about the 100 million federal crimes on the internet. He will do nothing about the millions of crimes by his tech billionaire sponsors. He will empty the federal prisons of vicious, rabid criminals and call it sentencing reform.

    He will be relentless in his pursuit of his political adversaries. The Democrat lawfare against the loser of the election will continue under this Ivy indoctrinated lawyer. Why are Republicans not replying in kind? I could find 3 federal crimes a day if you lend me his laptop for an hour. I could do so for a toddler. That does not even count the embedded child porn to be referred to the FBI for investigation.

  7. Someone mentioned consent decrees. Garland will Ferguson police departments around the country. They will react by no longer policing. They will answer 911 calls, take a report, and file it. Period. The murder rate of Democrats will soar throughout the nation. There will be 4000 excess murders of Democrats over that expected by their fraction of the population.

    1. That’s what got Richard Nixon elected in 1968.

    2. It simply is amazing how much contempt people on the right have for police. They don’t expect them to be professionals at all and assume they are whiney children who can’t handle any form of criticism, accountability, or oversight. The hero cop is such a hero that they won’t do anything to help other people unless they receive constant praise and no pushback for trivial things like killing people.

      1. “It simply is amazing how much contempt people on the right have for police.”

        Calling Sarcasto, someone is infringing on you gaslight patent here.

        1. DavidBehar isn’t Sarcastr0. He’s the one who is claiming cops won’t do their jobs if they have some minimal form of oversight.

      2. Fascists are gonna fascist. Authoritarians love it when the government beats someone into a coma with a nightstick.

        How anyone can read the Short Circuits posts here and still be for such uncritical shills for police power amazes me. But, for conservatives, due process only applies to billionaire Presidents and ex-Presidents.

      3. See Baltimore. It was Fergusoned by Harvard Law indoctrinated Rod Rosenstein. Murders soared. What I described is what the Baltimore police does now.

        1. Because they are whiney children incapable of doing their jobs instead of professionals?

        2. Whatever became of the Black Republican in the red dress?

          1. She lost her election badly and is claiming she actually won due to delusion or intentional grift.

      4. I cannot believe how the Right chants ACAB at their protests. Odd.

        Or how conservatives like Biden called the Capitol Police racists the day after the protests.

        1. Yeah. The right just think they are children completely incapable of dealing with any sort of criticism or oversight who will take their ball and go home if it is even discussed.

          1. Again, as opposed to the Left’s view of them?

            We on the Right believe the police won’t stop a crime. They are under no obligation to do so. It is YOUR job to protect yourself. Police are an irritating tool on a good day.

            1. The Right worships the police, and worship is not something we should have for any government official.

              1. Projection. The left worships government in its totality, at every level.

                1. Worship is a weird way to say thinks it is an important tool for creating a good society. No one on the left carries desecrated American flags with a thin green line shouting: EPA regional administrator lives matter!

                  And besides: you may not “worship” it, but you’re perfectly comfortable letting government decide who it can kill, torture, maim, and place in cruel confinement for decades.

                  1. Criminals need punishment, sometimes killing. Its either government or vigilantes. So government it is. No other choice.

                    1. Who gets to define what a criminal is Bob?

                    2. “Who gets to define what a criminal is Bob?”

                      Government of course. Under our system, elected legislators

                      Again, its government or vigilantes making the decisions.

                    3. Oh, Bob is a law and order guy. Hey Bob, how do you feel about the constitution, the parts outside of the 2a?

                      You like the whole thing? Like the emoluments clause? How about the part about the VP tabulating EC votes in a certain time, place, and manner? What about laws like the Hatch Act? You must support prosecution for Trump’s children then. What about income tax laws? Are those optional (for cult leaders)? Or how about Melania doing smut for pay while here on a tourist visa? We should probably put her in a cage for a few months before we determine she needs to be deported, without little Barron, of course. He stays in the cage until we find his real birth certificate.

                    4. ‘So government it is. No other choice.’

                      Weird that this grudging acceptance doesn’t establish common ground when it comes to oversight and accountaibility of those vested with the powers of arrest, punishment and killing. People all over the country stood up to deman accountability, and grudging Bob and like-minded small government Republicans and civil libertarians said nah, fuck that, hit ’em with the gas boys. Wonder why.

                    5. “Criminals need punishment, sometimes killing.”

                      Remember that point when your betters criminalize voter suppression and bigotry, you obsolete clinger.

                2. Every accusation is a confession for conservatives.

                  The Right loves government. Cops and the military can do no wrong in their eyes.

                  1. The largest federal agency? DOD. By far.

            2. We on the Right believe the police won’t stop a crime.

              Don’t want to get all “No True Scotsman” but have you ever listened to how most prominent right wing politicians and commentators talk about police?

  8. Josh will support Garland, this Ivy indoctrinated abomination and pro-criminal lawyer, because Josh is a lawyer. That position really requires a police officer.

  9. Ken Starr is going to testify? Someone actually cares what Ken Starr has to say?

    1. TBF he has more relevant experience in DOJ issues than Josh does.

      1. The Republicans get to send out a series of clingers whose words will be disregarded. This time around, the right-wingers chose reliable polemicists Starr and Blackman to clutter the transcript. It’s part of the process designed to make the losers feel better.

  10. Garland is just like Biden, an amiable figurehead.

    1. Please tell me you aren’t going to go with Merrick Garland has dementia?

      1. Well, he’s convinced a bombing happened at the Capitol, so he’s clearly not the sharpest knife in the drawer.

        1. There were pipe bombs discovered in DC.

          1. Existence of bombs are not a bombing, son.

            I think little of your intellect. Don’t give me more reason to doubt it.

            Hint: If a gun was on the ground, it would not mean a shooting occurred.

            1. I think little of your intellect and your morals.

              Actually I don’t care about you intellect, it can be far greater than mine. But your morals are just absolutely awful

              1. I don’t see how you know about this fellow’s morals

          2. I do wonder if those bombs were meant to explode, though. I’ve seen pictures, they had been left the previous night, and look like they’ve got 1 hour timers on them. Neither went off.

            We haven’t heard much about them since. Perhaps they weren’t much more than props?

            1. When someone sets bombs, you should believe them.

              1. Unless the bombs are props.

                Again, 1 hour timer, on two bombs placed the night before, neither went off.

                I’d be open to a forensic report saying the timers had been modified to take longer to go off, and were just incompetently made. But the silence surrounding those bombs has been amazing.

                They look like props to me, though I’m open to proof to the contrary.

                1. You’re making lots and lots of assumptions about the bombs in order not to believe them.

                  1. No assumptions would be necessary if there was full and candid disclosure about them. Or much of any disclosure beyond a few days of “MUH BAAHHMS” in the headlines. Got some? Let’s see it.

                  2. I believe the “bombs” existed. I saw pictures of them, 1 hour timer clearly visible on bombs that were placed the night before.

                    Like I said, that could be explained, but they’re conspicuously NOT explaining anything.

                    Don’t the competent bombers use burner cell phones instead of timers, these days?

                  3. they’re conspicuously NOT explaining anything

                    That sucks, but it’s also not evidence that they’re props.

                    1. No, the one hour timer on a bomb dropped off the previous night is evidence of that. I’m asking if there’s any counter-evidence that they’re NOT props.

                    2. That’s getting the burden exactly wrong, and you know it.

                      Dunno why an hour timer would indicate they weren’t meant to blow up.

                    3. OK, let me explain this:

                      1) A one hour timer for bombs that were meant to blow up, would imply the bombs were meant to blow up one hour after they were planted. Like, the day before the protest. What does that accomplish?

                      2) Neither bomb blew up.

                      3) There are widely understood and hugely superior alternatives to mechanical ‘egg timers’.

                      The bombs look to me like props.

        2. “he’s clearly not the sharpest knife in the drawer”

          More like a spoon.

          1. He’ll be serving up plenty of progress for clingers to swallow.

            Open wider, Bob from Ohio. Your betters are not done with you, not nearly. You get to whimper about it, but you will comply.

          2. Another great round of knifey-spooney.

  11. Garland was a very stupid choice on Biden’s part, should have been Doug Jones.

    I also can’t see why he’d accept this move from Circuit Court judge to AG. Doesn’t seem like a promotion to me.

    1. He is too old for SCOTUS, and after a while Circuit judge gets pretty boring. As AG he gets to extract a measure of revenge for being passed over.

      1. You also get to act more affirmatively and independently. Judges on appeals courts are reactionary in the sense that they only can respond to the things people bring them and they are stuck with panel dynamics. AGs can take more proactive measures on issues they care about.

        1. He wants to cash in. Couple of years at DOJ, then big bucks at a law firm.

          Ex judges are worth quite a bit to Big Law, ex US AGs are gold.

  12. Remember the pro-democracy Hong Kong protesters? They took over the Parliament. Jan. 6 was not an insurrection. It was a pro-democracy protest. Only Democrats killed a protester. The other deaths are not attributable to the protest. The coroner report on the police struck by the fire extinguisher is not released. Wait for that before calling the protesters, murderers.

    1. The police officer was not struck by a fire extinguisher.

    2. Nah.

      The traitors are murderers. And you are a traitor-supporter.

      1. I look forward to when this falls apart and the enemies list is drawn up. I will ONLY nominate you, Escher.

        1. Cool a threat to murder someone. You are a great person.

        2. Why are you making it so obvious how powerless you really are?

          Not “you” as in your political affiliation. “You” as in you, personally.

        3. “I look forward to when this falls apart and the enemies list is drawn up. I will ONLY nominate you, Escher.”

          Apocalyptic, all-talk, right-wing bigots are among my favorite culture war casualties — and the carefully cultivated core of the Volokh Conspiracy’s clinger following.

          1. Hi, Artie. All cheaters must be cancelled.

        4. I rate this threat 1/10. Do not feel threatened at all, and have no intention of changing my behavior as a consequence.

          But hey, way to double-down on “I support domestic terrorism”. Really on-brand.

    3. “It was a pro-democracy protest.”

      It was absolutely the opposite. Trump and his supporters aimed to stop the peaceful transference of power via officializing the results of a free and fair election. But, again, you can’t expect many on today’s Right to get why that’s important.

    4. Jan 6th wasn’t pro-democracy.

    5. “Democracy” happened on Nov 6. The riot was anti-democratic.

      You are a traitorous moron. Really.

      1. That’s baloney. The biggest election theft in U.S. history happened on November 6th.

  13. Professor Blackman…congrats on scoring the invite to testify before Congress on such an important matter. That is a pretty big deal.

    1. I like how far down the thread I had to scroll before someone actually gave Blackman the compliment he was looking for. Tho I do agree it is a nice gig

      1. Professor Blackman has many critics here at VC who are petty and demeaning. How many of them would score an invite like that? Damned few. I don’t know about you, but I would be very proud that my scholarship was recognized and my opinion important enough that Congress sought it out.

  14. One of the greatest things that the GOP has ever done was keep Garland off of the Supreme Court, some “moderate.”

  15. Here’s a follow-up question I would have asked Garland: if Timothy McVeigh blew up the Muurah federal building at night, when no one was in there, would that still be an act of domestic terrorism?

    This guy is a hollow puppet. What a dolt. The best that McConnell has ever done was keep him off the supreme court.

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