What Sotomayor ACTUALLY Said, And Why No Apology Is Necessary

by: Paul Rosenberg

Sat May 30, 2009 at 09:00

NOTE: I wrote this diary Friday evening.  After finishing it, I discovered that Newt Gingrich had gone all-in with full-throttle nutjob email attack on Sotomayor, all built upon the egregious mis-representation dealt with below.  Rather than re-write this diary, I will follow up with a separate one dealing in detail with Newt's demented attack email.  

The Ed Show started off Friday by calling it "a big mistake" that Obama was apologizing for one sentence by Sonia Sotomayor taken out of context from a 2001 speech, A Latina Judge's Voice.  And Ed was absolutely right. Taken out of context, it can be used against her, and so some response could certainly be called for.  But (1) there's all the difference in the world between an apology and clarification, and (2) as Ed pointed out, it should have been matched with harsh words for those who've been demonizing her--or, better yet, more subtly, praise for John Cornyn for repudiating Gingrich and Limbaugh for their demonizing attacks.

Before saying anything else, we need to be clear that this is the best attack point they have.  And what is it?  One sentence--discussing race and sex discrimination cases--that's part of a several paragraphs long argument that can't be fully understood in isolation.  Which is why we will go through her argument on the flip.  And yet, even though it can't be fully understood when quoted in isolation, it clearly is not what Gingrich, for example, is making it out to be.  

Here is the sentence:  

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Remember, she's discussing race & gender cases, and she is expressing the hope that a wise Latina woman would reach a better conclusion in those sorts of cases, by virtue of her experiences.  She is not expressing certainty, and she's not talking about all cases, but only about those concerning race and gender discrimination.  Now here's the Wall Street Journal reporting on what Gingrich turned that into (immediately following their quote of the actual sentence):

"Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman.' Wouldn't they have to withdraw?" asked former House Speaker Newt Gingrich on his Web site. "New racism is no better than old racism."

"Makes me better than"?  Where did Sotomayor say that?  It's obvious she did not.

And for anyone who's paid attention to Gingrich over the years, this sort of sloppy, self-serving misreading of others is just par for the course.  He's an incredibly bad listener.  But to really understand how far off the mark he is (and he's not the only one), we need to read Sotomayor's remarks in the context of at least several paragraphs, where she lays out different aspects of her thinking....

Paul Rosenberg :: What Sotomayor ACTUALLY Said, And Why No Apology Is Necessary
I'm analyzing the segment of her speech from post at Media Matters, which clearly situates the discussion in terms of actual judicial history.  However, before this segment, Sotomayor cites specific studies showing that women as a group do tend to reach different conclusions--not monolithically, but measurably, and thus they have a group impact on the law.  Meaning, of course, that men do as well:  

As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

Thus, her entire orientation in this speech is one that's grounded in facts, even as those facts reveal aspects of the general point that no set of facts will appear exactly the same to all observers.  Here, then, the passage quoted in Media Matters begins:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

This much is incontrovertable historical fact, and it acknowledges the capacity for overcoming race and gender perspectives, even as it points to the historical limitations as well: White males did make the crucial judicial decisions, but only after blacks and women made the crucial arguments.  That's not just Sotomayor's opinion.  That's what actually happened.

Next, she says something that many, many others have said--that who we are affects how we act--and contrasts this viewpoint with some others:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

First note that this entire paragraph, expanding on the one before it, unfolds as a multi-person, multi-perspective dialogue--and a rather densely-packed dialogue at that.  Furthermore, Sotomayor phrases the later part of this paragraph in terms of questioning, rather than asserting, further deepening the dialogic flavor, "I am also not so sure that I agree..."  The first part of what she's framed in terms of potential disagreement is the questioning of the notion of a universal wisdom, common to all--and there is a substantial literature to back up Minnow's point, both within and beyond the legal literature.  The second part is, in effect, questioning whether the experience of suffering discrimination might not hold out the legitimate hope of making better decisions as a result of having that experience--just as we might all hope to make better choices based on our own particular experience.

It's important to realize that the two points Sotomayor has raised have the exact opposite effect of that which Gingrich asserted.  Gingrich is assuming, contra Minnow, that there is only one, universal form or standard of wisdom, which is why he can sloppily slip from Sotomayor's hope to excel where she and others like her have particular experience to a claim of absolute superiority.  But Sotomayor is considering exactly the opposite of this loigic: because of Minnow's point, the possibility that Latina women like Sotomayor might make better use of their unique experience need not detract from the wisdom of others, it might simply be part of what defines differences in their wisdom.  And, indeed, this understanding of what she is saying fits perfectly with what she says next, and the points she goes on to develop:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

More indisputable historical fact.  It's so unfair when she takes advantage of reality's well-known left-wing bias like that, don't you think?


I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

Wow!  Talk about racist, huh?

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

Clearly, the meaning of that one sentence Sotomayor's attackers have jumped all over cannot be extracted from the entire passage I have quoted from.  Did that sentence actually assert universal superiority, which is the essential claim being made against her?  

No. Not in a million years.

Was it part of a flow of ideas seeking to distinguish differences and illuminate their possible impacts, accounting for past history without making any dogmatic assertions about what must be?

Yes, precisely.  That's exactly what she was doing.  And if you ask me, she has nothing to apologize for in what she said.  In fact, she ought to be proud.  

It's hard enough to accurately, subtly and forcefully communicate about such mattes in such a condensed manner.  Add the requirement that you express yourself in a way that no one can possibly misinterpret you, and the only alternative left is silence.

Which is, of course, precisely what Sotomayor's attackers really had in mind all along.

As I said: No apology necessary.

At least not from Sotomayor.

But from Gingrich, Limbaugh and all those other rightwing clowns?  Yes, I do believe an apology is due from them.  Not that I think we're ever going to hear one.  After all, being a conservative blowhard means never having to say you're sorry.

One final point: this sort of routine, casual misinterpretation is part of the living legacy of white supremacy and male supremacy that's still very much alive and well at the heart of movement conservatism.  If you think you're superior to everyone else, then it doesn't matter what they say, all that matters is what you say they say.  And this, of course, is the essence of all forms of supremacist thinking--you alone have the right to define reality for everyone else.

No dialogue necessary.

There's a reason they're called dictators.  Not listeners.  And it's the same reason they're such utter fools.

And, yes, Virginia, racists, too.

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Once again Paul (4.00 / 5)
you remind me why I scurry to OpenLeft to look for your pieces, in particular.  Your insight, backed up by facts/research, concisely sums it up.

I still am stunned by the amount of so called "moderates" who buy into the meme of "but race and gender" should not matter still and don't get why those things do matter still.
Equity has not been reached, not even close, and the fact that so many moderate, even lefty, males do not see it, speaks volumes.

We all want that utopian society one day, where race and gender do not matter some day.  That should be our goal.  
But we are not there, we are not close.  

What I am seeing is a bunch of old, white, conservative males trying to get back their ABSOLUTES....
that they, white males, absolutely have the "God given right" to their money, their power and their control of all things, including women, children and people of color.

While I understand Obama's strategy in this, and even believe if it were Hillary she too would take this pragmatic approach, I disagree.  Does  not make me right. I just truly believe we, the rest of us, need to push back hard.  These men, Newt, Rush, and their ilk, are nothing more than obnoxious pudgy old bullies who want their minions to get out there and "show them (those girls, those minorities)" whose boss.


"obnoxious pudgy old bullies" (4.00 / 3)
Boy howdy!

The hardest thing for me is getting past my visceral disgust with their combination of bullying, self-pity and puerile fantasies, so that I can actually write something coherent, rather than simply sputtering, "Newt, you ignorant slut!"

They remind me of schoolyard bullies I tried hard to avoid back in 4th and 5th grade.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
I know you were excoriated for 'diagnosing' without a medical guild card. (4.00 / 2)
But that is the lay description of pathological narcissism Paul.
bullying, self-pity and puerile

And it is as apt and clearly descriptive a picture of the people you are talking about as I can think of.

And if there is anything in the last several months or years that brings out the whimpering bully more than merely joining, nor replacing, white men at the top of the power ladder, this is it.

"I dont wannnna SHAAARE!!!!!!!!!" the toddler screamed hitting those nearest him.


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
Actually, "bullying, self-pity, and puerile"doesn't sound much like pathological (4.00 / 3)
narcissism as I've dealt with it; my grandmother is a clinical narcissist and, by my account, has never expressed a word of self-pity in her life- it would mean admitting weakness and vulnerability. However, sociopaths, as I've dealt with them, are tremendously self-pitying.

[ Parent ]
This situation reminds me of "Who's Harry Crumb" (4.00 / 1)
when the John Candy character is caught feigning knowledge of Japanese, and after a stumbling attempt to extricate himself, the true Japanese speaker quips "I see English is a problem as well."

Shorter Sotomayor:

Wise latina, wise white man = similar decision.

Average latina, average white man = similar decision.

Ignorant latina, ignorant white man = similar decision.

Wise Latina, average white man =  The wise latina will decide better.

A banal truism, unless you cannot parse the English language...

True, But (4.00 / 3)
there actually is a further point as well, which Sotomayor goes on to make.  A wise white man might well do as well as a wise Latina, but it would take extra effort to do so on average, and we can't always count on that.

Whoever we are, it takes extra effort to go beyond that which is given to us by our own direct experience.  So there will always be areas in which some will have a natural advantage over others.  The upside, of course, is that making that extra effort pays extra dividends, too.  

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Sotomayor is spot on. (4.00 / 3)
I can't believe this is even controversial.

Clearly (from the paragraphs around it) Judge Sotomayor is commenting on a Latina woman's ability to reach the right outcome in a sex or race discrimination case, not on cases generally (although obviously her background will be important in many other cases as well). Even if the legal standard were clear in sex and race discrimination cases (which it is not), the application of that standard to the facts is always somewhat subjective, based on what conduct one finds to be offensive, hostile, sexual, racial, etc.  As a current law clerk I can assure you that the divergence on discrimination cases between judges is MUCH greater than on say, a breach of contract or fraud case.  In such circumstances, a judge's experience, identity, and perspective make a huge difference.  

Now perhaps it might be argued that: "well Sotomayor isn't saying that a woman or a Latina's experience is just valuable, she is saying it is BETTER than a white male's."  But that is not what she is saying at all.  She is saying that in the context of a legal world where the vast majority of judges are (and have been) white men, the addition of a Latina woman will make sex and race discrimination decisions better.  That would certainly NOT be the case if we had had only Latina women on the Court for the last 200 years, with the exception of two men and two whites (one of whom was super liberal and always sided with the extremist Latina women majority faction).  

SO IF SOMEONE JUST DOESN'T GET IT, and still buys this right-wing talking point, here is my strategy:

Ask your (presumably) devout Christian friend what it would be like having 9 athiests on the Supreme Court and how that would affect the Court's rulings on religious expression; or, if rather, having a few religious persons on the Court might lead to better decisions?  Or ask a NRA member whether having a gun owner on the Court would benefit its 2nd Amendment jurisprudence (assuming there is going to continue to be one).  If they have any ounce of honesty, they will tell you it would make a positive difference.  Ask a libertarian or republican whether a Supreme Court of Justices who rent would make equally good decisions in Takings Clause cases?

I Honestly Didn't Think Republicans Was This Stupid. (4.00 / 3)
The type of attack they launched against Sotomayor is comparable to their past smears. Media Matters has tons of examples where conservative have gone ape-shit crazy over this appointment. I think what they're mostly upset about more than anything else is that Obama schooled them on identity politics 101. Remember how Bush filled his administration with minorities in top positions, but it didn't shift a majority of minority voters to the party? Remember how picking Palin was a "grand" idea to them because it would attract a large number of dissatisfied, female Hillary voters? Ha! We've all seen how that turned out.

They're pissed because Obama not only appointed the first Latina to the SCOTUS, but it's a move that will have a lasting effect for the Democratic Party -- and they know it! That's why their attacks were so fringe and over-the-top. Thus, they resort to their only last grain of hope: igniting the angry white man vote. But surely they must know that getting the angry white man vote isn't enough to sway elections anymore. That's why I was shocked with how strident and nasty their attacks were. It's like they have no strategy or future outlook for their party, and alienating Hispanic voters by demonizing the first Latina Supreme Court Justice isn't an issue with them...yet, at least!

It's shocking to witness. I never seen the Republican Party so off their game.

They Believe Their Own Lies (4.00 / 3)
They really believed that a few token hires was all they needed to make big inroads among women and minorities they'd been shafting for decades.  That's because they really do think that women and minorities are stupid.  So mostly, they don't even bother to get plausible tokens--hence Clarence Thomas, Alberto Gonzales and Sarah Palin.

Maybe if they'd bothered to take a few courses in Black studies, Latino studies or Womens Studies, instead of ridiculing them, they would have had some sort of clue that their strategy could use some more work.

But, no.  They had to take Sports Marketing instead.

And now even Charles Barkley has abandoned them.

'Taint fair!

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
This is spot on too. (4.00 / 2)
Thus, they resort to their only last grain of hope: igniting the angry white man vote. But surely they must know that getting the angry white man vote isn't enough to sway elections anymore. That's why I was shocked with how strident and nasty their attacks were. It's like they have no strategy or future outlook for their party, and alienating Hispanic voters by demonizing the first Latina Supreme Court Justice isn't an issue with them...yet, at least!

I am beginning to worry "igniting the angry white man" and not his vote, is the true purpose of the hard right now. They really don't seem to be trying to sway the middle at all anymore. They seem to be ignoring the middle, sweeping it aside. Its more like they are trying to build fanatics who could do anything.  


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
I'm Not Sure They HAVE A Strategy (4.00 / 3)
These guys seem so deep in their ids, it's like there's no rational function happening at all anymore.

They're just outraged at their loss of total power, and they're like a two-year-old showing you what the "terrible twos" are all about.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Racism (4.00 / 4)
The racism is on the right. The other night Bill Bennett and a few others of his stripe were demeaning Sotomayor's accomplishments. He stated that she probably was an "affirmative action" acceptance to college. That's just overt racism.

Bennett, after all, was the one who pushed education reform. So he should be pointing to Sotomayer as an example of how well public school education works and be proud of her achievements. Apparently, his education reform ideas only extend to middle class white (preferably male) students.

What this all boils down to is yet another instance of the disconnect between how blacks and Hispanics see discrimination in the US and how the privileged Bill Bennett types do. The minorities report at rate of about 70% that they have suffered discrimination at some point in their lives, while only about 20% of the frat boys things this is still a problem.

Taken in this light it is entirely appropriate (and accurate) for her to think that her direct experience with racism, poverty and being a woman in a man's profession would give her insights lacking by Roberts and the rest of the gang.

For the frat boys to admit that she has a point would also require them to admit that discrimination and lack of options is still a problem in the US, but their attempt to roll back civil rights reform is based upon the fiction that this type of behavior no longer exists.

Yesterday this report came out about the results of abandoning school busing and other integration steps.

What was found was that the schools rapidly became re-segregated and the best teachers moved to schools with more diversity. Everything got worse. So much for the fiction about not needing equalizing programs.  

Policies not Politics

Their Ignorance Is Appalling (4.00 / 3)
The notion of Bennett as Secretary of Education tells you everything you'd ever need to know about the subjects of undeserved honors, unqualified hires, racism and projection.

Let's just hope an overwhelming majority of people see this ugly racist diatribe for what it is.  This might actually be some sort of watershed in public understanding.  

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Code words (4.00 / 4)
Nixon knew enought to put everything in code words.  It was obvious that he was appealing to some racists but less obvious that he was overtly racist himself.  Limbaugh, Gingrich, Bennett and friends leave nothing to the imagination.  They gain little and lose at least some of the "respectable" Republicans.

Nixon was smarter than Gingrich or Limbaugh.  No surprise there.  Fortunately, Republicans are giving "regression towards the mean" a multiple meaning (meaner and more stupid).

I agree with your basic thrust Paul (0.00 / 0)
although I think Obama's walkback is a small mistake rather than a big one and Ed was overreacting.  Overreacting but right - no apology was necessary so why make one?  But ultimately, I would hope, it won't matter.  

But there's a much simpler defense of Sotomayor's remarks than the one you made.  It depends only on the sentence they are objecting to and doesn't require the additional evidence of context.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

There are not one but two subjunctives in that sentence and they change the whole meaning from what Gingrich and all are alleging.  The phrasing is not exact and leaves room for wiggle, but what Sotomayor is saying in that sentence amounts to holding herself to a higher standard that those who had not had the experiences she did.  She is raising the bar for herself, not lowering it.  What she is hoping for is to be able to live up to the standard she elevated for herself.

sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

I Think Obama Did Better Today (0.00 / 0)
As for the point you make about Soromayor setting a higher stantdard, I'm afraid I started out to make it myself, but it got buried in the process of writing more extensively than my initial short version, so I'm glad you brought it up.  It's definitely important, and deserves a sharper focus.

Part of why it sort of disappeared was that the more I thought about it, the more it seemed to me like it was simply another example of someone expressing the all-American desire to be their best, in whatever circumstances they find themselves.  And so I had wanted to write about how some folks weren't allowed to express that all-American view without being seen in very different, almost contradictory terms.  But, then that turned out not to fit in the flow of what I was writing, and I neglected to go back and insert something less elaborate.

The reason I go into such length about this is that I really think it matters how subtly these lines get drawn as to what counts as "all-American" vs. "other".  Sometimes it's blatantly obvious, but other times not so much.  Other times, it can be staring you in the face for years before you see it.

And then you just feel dumb as shit.  "How could I miss that?"

But it's easy to miss when you live in a land of constant forgetting.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
I have a suggestion (0.00 / 0)
We start ignoring people like Gingrich when they make outlandish claims like 'x is racist' or 'this is the new racism' and more importantly encourage the mainstream media to do the same.  There is NO reasons why gingrich or cheney sor Henry Kissinger should be given the privilege of joking around with david letterman or jon stewart without being significantly challenged (occasionally they are, but far too often they're not).  This suggestion is not partisan politics, but just pointing out a basic discrepancy in fairness - if Nancy Pelosi is going to be raked over the coals and so is Donald Rusmfeld, then these f"£kers need to be too.

It's fine to address their points without referring to them and giving a bunch of !"£$"£$%"£Q$% more credibility than they ever deserved and certainly don't deserve now.  I have a feeling that they will just go apeshit because they are being marginalised, get more shrill, and discredit themselves further.

"He's an incredibly bad listener" is highly charitable :)

Well, I Hope You Like My Latest Addition (0.00 / 0)
I was just getting warmed up on Gingrich in this diary, that's all.  I wanted the focus to be on Sotomayor first, and foremost.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
yeah my anger got hte best of me. i like your suggestion using gingrich to try to force the republcians to repudiate him (0.00 / 0)
i do think strategically some more attention on his anti-working class policies is in order because he's laying the seeds for future divide and conquer strategies by doing this stuff and i would like this prgressive moment to last as long as actually pssible (i.e. 60 years instead of 20).

[ Parent ]
This has nothing to do with what she said (0.00 / 0)
There's a purpose to this repuglican madness. To the Progressive and normal thinking individual what the Rethuglicans and their wingnut talking heads are doing makes no sense! But remember were dealing with a group that has never let logic, truth, facts,fairness or decency get in their way! They have learned this dastardly approach is an effective way to manipulate their opponents. The most obvious example is The White house from Obama down bending to the screechings and outlandish rantings. In an effort to "Get them to stop" Obama decided to admit Sotomayer miss spoke and would have said things differently. For some un-godly reason Dems are constantly bending to this relentless bullshit thrown at them by the right. Always apologizing, always trying to appease them. I'll bet we could spend an entire dairy or two getting examples of appeasement on the left to placate the right that never placates or appeases but instead invokes mockery of Dems as always caving and weak. Yet we continue to be shocked, SHOCKED each time it happens. To me the answer to why the wingnuts are doing this is consistant SOP and it's goal is to intimidate both Obama and Sotomayer. They know she will be confirmed and therefore they want to make her show how "Balanced" and moderate she is. In Obama's case they are sending him a very clear message for the future. When the Next SCOTUS appointment comes up you can bet you last dollar Obama and his team will be painfully aware of the Rabid intensity of attacks destined to be heaped on anyone they choose. Each Candidate will be faced with the prospect of be attacked personally and smeared, degraded and what ever sick minded attacks rethuglicans can come up with. There message to Obama is very clear "If you don't like what whe're doing to Sotomayer, a 100% fair and moderate candidate was bad, you can only imagine what  theyre going to do to a Real LIBERAL"

True (0.00 / 0)
I agree with everything you said.

But, it's not an either/or thing.

One has to defuse the bombs they throw, regardless of whether they should be taken seriously or not.

And one also has to note that they are nothing but bomb-throwers, without a good-faith bone (or even sliver of cartilage) in their bodies.

My later diary about Newt's racist attack on Sotomayor is more along the lines of the second point.  I hope you find it useful.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]

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