April 2012 Archives

May Day or Law Day?

      In almost every country in the world, workers celebrate May 1st as May Day, or International Workers' Day. It is a national holiday in more than 80 countries.
       May Day was created to commemorate one of the many bloody events in the labor history of the United States: The 1886 Haymarket Massacre in Chicago. The tragedy refers to the aftermath of a bombing that took place at a labor demonstration on Tuesday May 4, 1886, at Haymarket Square in Chicago. A peaceful rally in support of workers who were striking for an eight-hour day was held in the square. An anonymous provocateur threw a dynamite bomb at police after they began to forcibly  disperse the supporters who had gathered at the public meeting. The bomb blast and subsequent gunfire resulted in the deaths of seven police officers, four civilians, and the wounding of scores of others. Many, if not all of the deaths, including those of the police, were believed to have been caused by poorly trained police.

A bilingual English-German flier notifying peo...

A bilingual English-German flier notifying people of a rally in support of striking workers (Chicago, 1886). (Photo credit: Wikipedia)

     In the public prosecutions that followed, eight anarchists were arrested and subsequently convicted of conspiracy, notwithstanding the candid admission by the prosecution who conceded that none of the accused defendants had thrown the bomb. Seven of these anarchists were sentenced to death, and one was given a term of 15 years in prison. The death sentences of two of the defendants were commuted by Illinois governor Richard J. Oglesby to terms of life in prison, and one other defendant committed suicide in jail before he could be hanged. The other four were hanged on November 11, 1887. In 1893, Illinois' new governor John Peter Altgeld pardoned the remaining defendants and publicly criticized the trial.

      In 1889, the first congress of the Second Socialist International, meeting in Paris for the centennial of the French Revolution, issued a call for international demonstrations, in 1890, to honor of the fourth anniversary of the beginning of the Chicago protests. May Day was formally recognized as an annual event at the International's second congress in 1891.

     In the United States, by contrast, the Central Labor Union and the Knights of Labor, suggested that the celebration of Labor Day for American workers be observed in September as a patriotic alternative to May Day. President Grover Cleveland, ever a supplicant of the business community and  fearful that a May 1st commemoration of Labor Day could become an occasion  to remind workers of the injustices they suffered, agreed in 1887 to support a Labor Day holiday in September as the Knights had proposed.

     Despite President Cleveland's proclamation, American workers continued to observe and to celebrate May1st well into the twentieth century. Parades in New York City, Chicago and in other metropolitan areas, drew millions of union members and supporters of workers' rights. Eighty-one years ago, on May 1, 1933, Dorothy Day, appeared at a rally in Union Square to distribute the first edition of her newspaper and to announce the formation of her organization, the Catholic Worker movement, that to the present is based upon the humble poverty and a radical commitment to social justice inspired by the Gospels and the example of St.Francis of Assisi. 

Each year, on the 1st May there is a huge free...

Each year, on the 1st May there is a huge free concert in "San Giovanni" square in Rome, Italy. In 2007 there were approximately 700000 people 

      Gradually, however, as the assault upon unions and workers' rights began to gather momentum under the guise of combating Bolshevism  and socialism, the meaning and the purpose of May Day, have been, by and large, successfully erased  from the collective consciousness of Americans as revisionist scholars have continued to rewrite American history to depict it as the heroic efforts of the self -made "haves and soon-to-haves" to triumph over the forces of collectivism. In 1921, after the Russian Revolution of 1917, May 1st  was promoted as "Americanization Day" by the Veterans of Foreign Wars and other groups as a counter to communists. In 1949, Americanization Day was renamed to Loyalty Day. In 1958, the U.S. Congress declared Loyalty Day, the U.S. recognition of May 1st, to be a national holiday.

     Not to be outdone in his patriotic zeal, President Dwight Eisenhower established the first Law Day in 1958. Thereafter, in 1961, Congress issued a joint resolution that designated May 1st as Law Day, which was subsequently codified (U.S. Code, Title 36, Section 113). "Since then every president has issued a Law Day proclamation on May 1 to celebrate the nation's commitment to the rule of law", as the American Bar Association proudly proclaims on its website.

      This May Day should remind every working American how much ground employees have lost in the workplace in the past sixty-five years. After the death of Franklin Roosevelt and the election of a Republican Congress in 1946, the right-wing in the United States became resurgent. The first great success of New Deal critics was achieved with the enactment of the Taft-Hartley Act in 1947, which was passed over President Truman's veto. The effect of this legislation was to outlaw "closed shops" and to permit individual states to allow "open shops" - i.e. shops in which elected unions could not require all of the employees to belong to the unions, irrespective of whether the non-union employees also received and enjoyed the benefits of collective bargaining.

     As a result of that legislation, corporations began an inevitable migration to the South where welcoming state legislatures hastily enacted "right-to-work" laws. The migration of these manufacturing companies away from the unionized urban centers of the Midwest and North left hundreds of mill towns impoverished and desolate, and the union movement was effectively eviscerated. It took only a few more decades, however,  for the owners of corporations to discover that, once they had escaped from the threat of unionization, they could escape almost all government regulation by moving their business and manufacturing operations out of the United States to Third World countries.

    Even among the few unionized workers still employed in manufacturing, a two-tier pay system has  been imposed by management to which unions were forced to acquiesce because of downward economic pressures: younger workers now make substantially less per hour than more senior employees who perform the same work. The effect of this two-tier system denies younger workers upward mobility and divides workers based solely upon dates of hire: "The changing job market is undercutting entry-level wages for those who do not go to college. 'In the 1960s and 1970s, you saw high school graduates getting good jobs at Ford and AT&T, jobs that in inflation-adjusted terms were paying $20 or $25 in today's wages," said Sheldon Danziger, a professor of public policy at the University of Michigan. "Nowadays most kids with just high school degrees will work in service-sector jobs for $10 or less..."

      According to the U.S  Department of Labor ["Union Member Summary," January 22, 2010], as of 2010, only 12.3 per cent of employed wage and salary workers were union members. Not surprisingly, many of the same non-union employees do not seem to understand that their ability to influence working conditions and wages, as solitary individuals who lacked comparable bargaining power with managers and owners of business, are virtually nil. Apparently, however, the myth of the autonomous, self-made individual who can receive recognition, remuneration and advancement solely by dint of one's own hard work continues to resonate in the workplace to the present, notwithstanding all of the evidence to the contrary.

      The effect of this continuing economic trend has been to show, once again, that the market economy, and the ideology upon which it is based, produces results quite different from its theory: In an world of unrestrained competition, only the few, the wealthier, the more powerful, the more resourceful, the better educated, the more mobile, will be able to maximize their opportunities; everyone else gets left behind.

      With the demise of the labor movement, the American workplace continues to be governed by the nineteenth century doctrine of employment-at-will, which further circumscribes the ability of most Americans to protect their livelihoods or to improve their conditions of work. The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. 
      Since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is again one of inequality in which the employees are burdened and the employers benefited. In response to this conundrum, the operative political philosophy of this country, which is based upon John Locke's model of politics, can provide no guidance or remedy whatsoever, since his politics envision nothing beyond solitary actors whose property must be protected as well as their rights of acquisition.

        The labor laws of the United States today are  among the most restrictive and onerous in the developed world. Labor laws that are rigged in favor of the employers and the legal fiction of at-will employment need to be at the top of any agenda to reform the American economy and restore a vibrant middle class. Since corporations and employers are not required to any show any loyalty to their employees, employees need to demand that our labor laws and our tax policies protect the rights of workers and the middle class, and place obstacles in the way of corporations, particularly multi-national corporations, from doing further damage to the American economy.         

    The philosopher George Santayana reminds that those who forget the past are condemned to repeat it. Reclaiming the American Dream must begin with reclaiming our collective history. Remembering the meaning of May 1st and expressing our  solidarity with one another and with workers everywhere is an essential first step in that process.        


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Congressman Ryan's Delusional Politics

        In a recent interview on the Christian Broadcasting Network, Congressman Paul Ryan stated that, as a Catholic, the Church's "social magisterium" was the inspiration for his most recent House budget proposal. Ryan claimed that one essential goal of that teaching was to prevent the poor from staying poor and not becoming lifelong dependents of the government. Ryan further stated that, "A person's faith is central to how they conduct themselves in public and in private." 
  Deutsch: Emblem des Pontifikats English: emble...
         After a series of biting criticisms from progressive Democrats who documented that the  spending cuts contained in Ryan's proposed  budget would savage the poor and advantage the  wealthy, Daniel Henninger, a right-wing opinion columnist for the Wall Street Journal,valiantly rose to Ryan's defense: He accused the Congressman's critics of "demolishing Paul Ryan" and distorting Ryan's commitment to the Catholic notion of "subsidiarity - i.e. a principle that holds that human affairs are best handled at the lowest possible level, closest to the affected persons.    
          The question that Henninger avoided asking, however, is whether, in fact, the values that Paul Ryan endorses are consonant with the tradition of Catholic social philosophy and whether they are, in fact, conservative at all? All of the evidence suggests the contrary.   

        The U.S. Conference of Catholic Bishops has issued a guide entitled "Sharing Catholic Social Teaching: Challenges and Directions." It emphasizes that "The Catholic tradition teaches that human dignity can be protected and a healthy community can be achieved only if human rights are protected and responsibilities are met. Therefore, every person has a fundamental right to life and a right to those things required for human decency. Corresponding to these rights are duties and responsibilities--to one another, to our families, and to the larger society." As such, "Human dignity can be protected and a healthy community can be achieved only if human rights are protected and responsibilities are met. Every person has a fundamental right to life and a right to those things required for human decency - starting with food, shelter and clothing, employment, health care, and education. Corresponding to these rights are duties and responsibilities -- to one another, to our families, and to the larger society."

        Under a section entitled "Option for the Poor and Vulnerable," the guide proclaims: "A basic moral test is how our most vulnerable members are faring. In a society marred by deepening divisions between rich and poor, our tradition recalls the story of the Last Judgment (Mt 25:31-46) and instructs us to put the needs of the poor and vulnerable first." Indeed, this option is a major barometer of one's commitment to social justice since "The moral test of a society is how it treats its most vulnerable members. The poor have the most urgent moral claim on the conscience of the nation. We are called to look at public policy decisions in terms of how they affect the poor. The 'option for the poor,' is not an adversarial slogan that pits one group or class against another. Rather it states that the deprivation and powerlessness of the poor wounds the whole community. The option for the poor is an essential part of society's effort to achieve the common good. A healthy community can be achieved only if its members give special attention to those with special needs, to those who are poor and on the margins of society."

       Equally emphatic is the Catholic Church's rejection of those economic doctrines that have elevated the primacy of the markets and capitalism over basic human needs. "The economy must serve people, not the other way around. All workers have a right to productive work, to decent and fair wages, and to safe working conditions. They also have a fundamental right to organize and join unions. People have a right to economic initiative and private property, but these rights have limits. No one is allowed to amass excessive wealth when others lack the basic necessities of life."  Although "Catholic teaching opposes collectivist and statist economic approaches.... it also rejects the notion that a free market automatically produces justice. Distributive justice, for example, cannot be achieved by relying entirely on free market forces. Competition and free markets are useful elements of economic systems. However, markets must be kept within limits, because there are many needs and goods that cannot be satisfied by the market system. It is the task of the state and of all society to intervene and ensure that these needs are met."
        The section styled "The Dignity of Work and the Rights of Workers" expresses the Catholic Church's long-standing endorsement of unions and the need for government regulation of the economy in the public interest: "The economy must serve people, not the other way around. Work is more than a way to make a living; it is a form of continuing participation in Gods creation. If the dignity of work is to be protected, then the basic rights of workers must be respected--the right to productive work, to decent and fair wages, to the organization and joining of unions, to private property, and to economic initiative." Consistent with this view, "All people have a right to participate in the economic, political, and cultural life of society. It is a fundamental demand of justice and a requirement for human dignity that all people be assured a minimum level of participation in the community. It is wrong for a person or a group to be excluded unfairly or to be unable to participate in society."
       Catholic social doctrine insists upon the importance of government as a positive instrument to advance the public good. For that reason, the current assault that is being waged by Ryan and his Republican supporters upon government is impossible to square with historic Catholic social teaching. As the " Sharing Catholic Social Teaching: Challenges and Directions: Guide to Catholic Social Teaching" explains, "The state has a positive moral function. It is an instrument to promote human dignity, protect human rights, and build the common good. All people have a right and a responsibility to participate in political institutions so that government can achieve its proper goals. The principle of subsidiarity holds that the functions of government should be performed at the lowest level possible, as long as they can be performed adequately. When the needs in question cannot adequately be met at the lower level, then it is not only necessary, but imperative that higher levels of government intervene..."

       In his encyclical, Mater et Magister, Pope John XXIII emphasized the central role of the state in promoting social justice: "As for the State, its whole raison d'etre is the realization of the common good in the temporal order. It cannot, therefore, hold aloof from economic matters. On the contrary, it must do all in its power to promote the production of a sufficient supply of material goods, 'the use of which is necessary for the practice of virtue.' It has also the duty to protect the rights of all its people, and particularly of its weaker members, the workers, women and children. It can never be right for the State to shirk its obligation of working actively for the betterment of the condition of the workingman. "       
       By contrast, Congressman Ryan has repeatedly expressed his admiration and enthusiasm for the writings of Ayn Rand and is reliably reported to have required that all of his staff read Rand's Fountainhead and Atlas Shrugged. Rand extolled unbridled selfishness and condemned altruism as a misguided instinct. Given the legacy of antisocial individualism in this country, the gospel of selfishness has enjoyed  a long and venerable history long before "Objectivism" was touted as something new and fashionable. Particularly during times of economic crises when, as now, the social fabric has begun to fray, the advocates of selfishness have regularly reappeared to peddle their political philosophy as a nostrum that they claim will cure all that ails the country's body politic.  

        The kind of anti-government rhetoric advanced by Congressman Ryan is at loggerheads with the Catholic moral teaching that is an essential part of the conservative political tradition. Because that tradition traces its lineage from Aristotle, through Thomas Aquinas, to Catholic philosophers today, that authentically conservative tradition is fundamentally at odds with the kind of anti-social individualism that dominates current GOP political discourse. In stark contrast to Catholic social teaching, that discourse draws its values from the tradition of classical liberalism that emerged after the Protestant Reformation and was trumpeted by Thomas Hobbes, John Locke, David Hume and Adam Smith, among other English thinkers.

        Part of the confusion over whether Ryan's proposed  budget reflects consistent Catholic social teaching is directly attributable to the confusion and timidity of the current U.S. Bishops. Obsessed by matters sexual and reproductive, blind to enormous scandal in their own midst, and chosen primarily because of their obsequious, unquestioning loyalty to an increasingly rigid and doctrinaire pontiff, they have chosen to mute their fidelity and responsibility to affirm historic Catholic teaching in a Faustian bargain not to offend the GOP politicians who agree with them solely on issues of contraception and reproductive rights.

        Paul Ryan, as a right-wing libertarian, has never expressed a commitment to the idea of social justice, nor is he able to comprehend that the notion that the public interest is something different and distinct from a mere aggregation of self-interests. He also denies that the role of government, to use the words of A.D. Lindsey, is to "hinder the hindrances" - that is, to eliminate those impediments that stand in the way of a person's moral and civic development. For those reasons, Ryan, as is also true of his fellow GOP Catholics - Santorum, Gingrich ad Speaker Boehner - may be a Catholic in his theology, but his social philosophy and his politics are firmly rooted in the classical liberal politics  that emerged from the Protestant Reformation and are antithetical  to Catholic social teaching.
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Will The Rule of Law Prevail?

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    No where in the text of the United States Constitution is there any language that suggests or permits the Supreme Court of the United States to pass upon the constitutionality of statutes enacted into law by the Congress. Nevertheless, Hamilton in Federalist  No. 81 suggested that such a power might be a necessary extension of  Supreme Court's jurisdiction given the need for at least one of the three putatively coequal branches of government to determine which actions of the federal government or the states might violate Article VI of the Constitution which expressly provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made...... shall be the Supreme Law of the Land; and the Judges in every States shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

    Not long  thereafter, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall, in a perverse and ingenious decision that was carefully crafted to handcuff  Thomas Jefferson and other advocates of limited judicial power, held that the Congress had acted unconstitutionally in granting the Court the authority to issue original writs of mandamus. Decades after this power to invalidate acts contrary to the Constitution was firmly established as a legal principle, in the case of Gibbons v. Ogden, 22 U.S. (9 Wheat.)1 (1824), Marshall ruled that the power of the Congress to regulate "commercial intercourse" extended to all activity having any interstate impact -however indirect - and that this power was plenary and virtually unlimited: "The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, as in many other instances...the sole restraints...on its abuse." Ibid. at 197.

    It was not until one hundred and seven years later, despite the expansive language of Marshall's opinion, that the United States Supreme Court finally conceded the right of Congress to set minimum wages and maximum hours for employees who were engaged interstate commerce.United States .v Darby, 312 U.S. 100 (1941). A year later, in Wickard v. Filburn, 317 U.S. 111 (1942) the Supreme Court held that the Congress could regulate a farmer's cultivation of wheat for his own family's consumption because the cumulative effect of that kind of act by individual farmers would affect the supply and demand for wheat in the interstate commodity markets.  

    Since the advent of the Rehnquist era, however, an increasingly reactionary Supreme Court has tried to narrow the scope Article I, section 8, which confers upon the Congress, without any limiting language, the power "to regulate Commerce with foreign nations; and among the several States, and with the Indian tribes." To do this, they have chosen to breath new life into only one word of the language of Tenth Amendment that reserves certain powers not delegated "to the States respectively, or the people."

    In San Antonio v. Lopez, 115 S. Ct. 1624 (1995), by a 5-4 vote, the Supreme Court struck down a gun conviction that occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply.That same term, in U.S. Term Limits, Inc. V. Thornton, et al, 514 U.S. 779 (1995), Justice Clarence Thomas came within a "whisker' of persuading his colleagues to return American constitutional jurisprudence to the Articles of Confederation. In his dissent, Justice Thomas observed that the majority had "fundamentally misunderstood the notion of `reserved powers,'"and that "[c]ontrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications" for their members of Congress. Thomas contended that "[a]s far as the Federal Constitution is concerned . . . the States can exercise all powers that the Constitution does not withhold from them." Furthermore, "[t]he Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it."Justice Thomas insisted that "[I]f we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures."

    After the more recent appointments of Scalia, Alito and Roberts, questions about the Court's independence as an impartial, precedent-observing, judicially- restrained and non-partisan arbiter of the Constitution have become more pronounced. The apparent hostility of these three appointees, coupled with the reflexive, unabashed and well-documented hostility of Clarence Thomas to Congressional power, and the intellectual and linguistic difficulties with which Justice Kennedy appears to struggle, raise worrisome concerns about the fate of the Affordable Health Care Act and the hundreds of separate provisions, including the a personal mandate, the restrictions on denial of insurance for  preexisting conditions, the Medicaid extension provisions, and the extension of family medical insurance  to family dependents until their twenty-sixth birthday, that the act encompasses.   

    The U.S. Census Bureau reported that a record 50.7 million Americans--16.7% of the population--were uninsured in 2009. According to the Kaiser Family Foundation's report on Medicaid and the uninsured, in 2004, at which time when 44 million Americans were reported to be uninsured, uncompensated care was estimated to be $40.7 billion.  Today that cost has likely doubled. In a remarkable and important  book, The Great Risk Shift,Yale University Political Science professor, Jacob S. Hacker, after reviewing longitudinal studies, concluded that "Over a two year period, more than eighty million adults and children - one out of three non-elderly Americans, 85 percent of them working or the kids of working parents -spend some time without the protection against ruinous health costs that insurance offers."
    The cost for medical treatment for the uninsured is borne by all of us, as taxpayers through Medicaid and by additional, pass-through assessments imposed by insurers on the healthcare insurance plans of those of us who have coverage.

     If any of the lower court decisions provide guidance on the ideological world-view of the current Supreme Court's reactionary wing concerning efforts to reform health care, the decision of U.S. District Judge Henry Hudson might be informative. Judge Henry ruled that the healthcare coverage mandate was unconstitutional because Congress, based upon his narrow and unsupported interpretation of the interstate commerce class, cannot regulate what he deemed to be purely passive economic activity. In Commonwealth of Virginia v. Sebelius, 728  F.Supp.2d 768 (2010),  Judge Hudson found that, "At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage- it's about an individual's right to choose to participate."

    To arrive at this extraordinary conclusion, Judge Hudson failed to objectively apply the "rational basis" scrutiny test that federal courts have historically used to review the underlying authority of Congress to enact legislation under Article I of the Constitution. Judge Hudson accomplished this feat by verbal legerdemain: He contended that in ruling on the federal government's earlier motion to dismiss,"the Court recognized that the Secretary's application of the Commerce Clause and the General Welfare Clause appeared to extend beyond existing constitutional precedent..." Judge Hudson then proceeded to distinguish the instant case before him from the broad swath of Supreme Court precedent that, since the advent of the New Deal, has upheld the power of Congress to regulate a wide array of private economic activity  based upon of its power to regulate interstate commerce. The 1964 Civil Rights Act - that outlawed racial  segregation - was expressly based upon that constitutional grant of authority to the Congress.
    Judge Hudson next turned his attention to a favorite target of right-wing jurists: Article I, section 8, clause 18, that expressly permits Congress to "make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States..." This clause, which has also been described as the "elastic clause" enables Congress enact legislation for the "General Welfare"not specifically enumerated.

    Judge Hudson reasoning was a perfect non-sequitur: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution." 
    In his decision, Judge Hudson denied that Congress had the authority, independent of its power to regulate commerce, under the Necessary and Proper clause to enact health care reform. If his reasoning is subsequently adopted by the five equally reactionary members of the Roberts Court, the Constitution, as a document, will no longer be interpreted as a flexible, evolving instrument that can be adapted to ever-changing conditions beyond those ever envisioned or anticipated by the Founding Fathers. An increasingly rigid and narrow interpretation of the text of the constitution will do for constitutional jurisprudence what Southern Baptists, given their literal interpretation of the King James Bible, have done for the ability of Christian doctrine to evolve in the face of new, unanticipated challenges: make it obsolete. The harm to all of us as citizens, however, will be far greater. 

       A jurisprudence rooted in 18th century notions of individual rights and Adam Smith's economics will not help to create public policies for the 21st century. Rather, if the Affordable Health Care Act is struck down by five, unelected, unaccountable jurists, it will signal this country's continued departure from the principles of democratic governance.  If Dickens' observation that "the law is a ass" is not to be confirmed, the five right-wing  judges will have to sharpen their analytical tools and put aside their ideological biases.  

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