Cardin Urges Colleagues to Vote No on Kavanaugh on U.S. Senate Floor

Remarks as delivered on October 4, 2018:

   “Mr. President, I have read the FBI report. I listened to the Judiciary Committee hearings, including the second hearing with Dr. Ford and Judge Kavanaugh. I reviewed Judge Kavanaugh’s opinions as a judge and his public record during his tenure in the White House.

   “Based on his record, I cannot support his nomination for a lifetime appointment to the Supreme Court of the United States. I reached this conclusion before Dr. Ford’s allegations were made based on his court opinions and White House record. That conclusion was reinforced by Judge Kavanaugh’s testimony in response to Dr. Ford’s powerful and compelling testimony, raising very serious issues concerning Judge Kavanaugh’s conduct.

  “Judge Kavanaugh’s response demonstrated his lack of impartiality and temperament, which is a critical qualification to serve as a judge. That view was reinforced by a letter written by over 1,000 law professors and legal scholars reaching the same conclusion I had drawn.

   “I was very disappointed by the process on Judge Kavanaugh’s nomination that was dictated by the Republican leadership. For Senator McConnell, 10 months was inadequate time for the Senate to consider President Obama’s choice of Judge Merrick Garland to the Supreme Court of the United States. Yet Senator McConnell had no difficulty in rushing the consideration of Judge Kavanaugh through the Senate in a fraction of that time.

   “The Republican leadership refused to demand a complete discovery of relevant documents concerning Judge Kavanaugh. I served on the Judiciary Committee during the consideration of Justices Sotomayor and Kagan when the Republicans’ request for complete discovery was honored and welcomed by the Democrats. Such was not the case in regard to the Republicans honoring reasonable requests for information concerning Judge Kavanaugh.

   “To make matters worse, the chairman of the Judiciary Committee inappropriately and unilaterally classified certain documents as confidential, preventing their public use during the confirmation process.

   “After Dr. Ford’s allegations became public, the Republican leadership refused to allow the FBI to conduct a proper investigation before scheduling a rushed, inadequate, and incomplete hearing without any additional witnesses beyond Dr. Ford and Judge Kavanaugh. The Republican leadership refused to call before the committee eye witnesses to the allegation.

   “Prior to the first hearing and before I reached a conclusion on the nomination, I had requested an opportunity to meet one-on-one with Judge Kavanaugh, which is the Senate tradition on Supreme Court nominees. That request was denied by the White House.

   “I cannot support Judge Kavanaugh because of his judicial record, his partisan leanings, and lack of impartiality and judicial temperament.

   “I am concerned Judge Kavanaugh is inclined to turn back the clock on civil rights and civil liberties, voting rights, reproductive choice, equality, the Affordable Care Act, workers’ rights, clean air and clean water, and protection of abuses from corporate and political power, including the President of the United States.

   “Our Constitution created the Supreme Court as an independent check and balance against both the executive and legislative branches of government. It should not be a rubberstamp for Presidential efforts to undermine the rule of law or independence of the Judiciary, self-pardon, or derail Special Counsel Mueller’s investigation into Russia’s interference in our 2016 elections.

   “The next Justice of the Supreme Court should not be predisposed to rich corporations at the expense of consumers or hollow out protections for Americans against abuse of power as Judge Kavanaugh’s record as appellate judge reveals.

   “Judge Kavanaugh has advanced legal theories as part of an activist agenda to overturn longstanding precedent to diminish the power of Federal agencies to help people, and he has demonstrated an expansive view of Presidential power that includes his belief that Presidents should not be subject to civil suits or criminal actions.

   “Let me turn to some specific policies in Judge Kavanaugh’s record that concerns me should he become Justice Kavanaugh. To point out what I just said, I look at the opinions and writings he has done.

   “There are concerns Judge Kavanaugh’s nomination could present a conflict of interest on the ongoing investigations of the Russian interference in the 2016 Presidential elections as the Supreme Court could be asked to rule on whether Special Counsel Robert Mueller has the right to subpoena the President to testify. In his confirmation hearing, Judge Kavanaugh refused to say whether he would recuse himself from this case should it reach the Court.

   “I hope the Supreme Court would indeed compel President Trump to comply with any reasonable subpoena from the special counsel, citing the precedent of requiring President Richard Nixon to surrender tapes and other evidence during the Watergate investigations. The Supreme Court ultimately held that the President was not above the law. Some comments of Judge Kavanaugh suggest he believes the Nixon case was wrongly decided.

   “There are also concerns that a Justice Kavanaugh would defer criminal investigations and prosecutions of a President’s misconduct until after President Trump leaves office. Ironically, his views on Presidential power have changed since he worked for Independent Counsel Kenneth Starr on the Whitewater investigation of President Bill Clinton. Indeed, Judge Kavanaugh wrote that a sitting President should have ‘absolute discretion’ to determine whether and when to appoint or remove a special counsel.

   “It is clear Judge Kavanaugh holds a troubling record when it comes to Presidential power. In the case of Seven-Sky v. Holder, pertaining to our country’s healthcare system, Judge Kavanaugh’s opinion implied that he believes the President does not have to enforce laws if the President deems a statute to be unconstitutional, regardless of whether a court has already held it constitutional.

   “Judge Kavanaugh was asked in 2016 if he could overturn precedent in any one case, and he said he would ‘put the final nail’ in Morrison v. Olson, which upheld the constitutionality of the independent counsel statute. It appears Judge Kavanaugh believes the President is above the law and the only remedy for Presidential misconduct in office is impeachment by Congress, as suggested in some of his writings in 2009. He wrote we ‘should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions’ and that the ‘country loses when the President’s focus is distracted by burdens of civil litigation or criminal investigation and possible prosecution.’

   “No one is above the law, including the President of the United States. We know President Trump has deep disregard for the rule of law. He constantly criticizes his own Justice Department, including urging the Justice Department to prosecute or not prosecute certain individuals. He has criticized the special counsel investigation into Russia interference in our election as a ‘witch hunt,’ notwithstanding the growing number of convictions and guilty pleas obtained by Mr. Mueller. He has explored whether he has the power to pardon himself, family members, and associates. The future status of Rod Rosenstein, the Deputy Attorney General who supervises the special counsel investigation, is in jeopardy as President Trump has made it known he would like Mr. Rosenstein to go.

   “We need a Supreme Court Justice who can stand up to the President, stand up for the rule of law, and stand up for the independence of the Judiciary. Based on his track record, I am not convinced a Justice Kavanaugh would do that.

   “While serving on the Court of Appeals for the DC Circuit, Judge Kavanaugh considered the constitutionality of the Affordable Care Act of 2011. The Court upheld the constitutionality of the Affordable Care Act by a 3-to-0 vote, and Judge Kavanaugh wrote a concurring opinion. His concurring opinion has been described as the roadmap challenging the constitutionality of the Affordable Care Act.

   “In his opinion, Judge Kavanaugh argued it was premature to hear the case before the individual mandate had taken effect. Judge Kavanaugh laid out the legal justifications for President Trump not enforcing the individual mandate and for a judicial challenge to the constitutionality for the Affordable Care Act.

   “A Justice Kavanaugh would raise significant concerns as to how he would rule on the protections of the Affordable Care Act against insurance companies discriminating on preexisting conditions, which could affect millions of Americans.

   “In June of this year, President Trump’s Department of Justice broke with longstanding Department precedent and cited it would no longer defend the Affordable Care Act. In a brief filed by the Trump administration in Texas v. United States, the administration joined with 20 Republican-led States to argue that the Affordable Care Act protections for people with preexisting conditions should be invalidated. In their court filing, the administration argued that when the Republican tax bill eliminated the individual mandate, the tax-less individual mandate became unconstitutional and therefore the law’s protections for those with preexisting conditions, including guaranteed issue and community rating, should be unenforceable.

   “In 2017, Health and Human Services released a report stating that as many as 133 million nonelderly Americans have a preexisting condition. Every one of them would be at risk if this protection is held to be invalid by the Supreme Court. The Maryland Health Benefit Exchange estimates that in Maryland, there are approximately 2.5 million nonelderly Marylanders with preexisting conditions, including 320,000 children all at risk.

   “In addition to Texas v. United States, there are dozens of healthcare cases pending in the lower courts which are likely to be appealed to the Supreme Court in the upcoming terms. The outcomes of these cases of the Supreme Court will directly impact access to healthcare for millions of American families, including the most vulnerable in our society.

   “In each of these cases, there is a question about whether the Affordable Care Act creates rights that individuals can enforce in courts. These cases deal with critical issues, such as the scope of healthcare coverage for nursing mothers, false advertising by health insurance companies, and whether employers are required to provide healthcare coverage to their employees.

   “Given Judge Kavanaugh’s stated hostility to the Affordable Care Act, I fear that a Justice Kavanaugh would further restrict access to healthcare for many Americans, particularly in regard to women’s healthcare, including birth control.

   “In Planned Parenthood v. Casey, the Supreme Court firmly established that the constitutional right to privacy protects women ‘from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.’ This standard, known as the ‘undue burden’ standard, prohibits government action that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion on a nonviable fetus.’

   “Judge Kavanaugh wrote in the dissent in Garza v. Hargan in 2017, supporting the Trump administration’s ongoing efforts to prohibit a pregnant immigrant teenager in government custody from exercising her constitutional right to make her own healthcare decisions. Judge Kavanaugh pays lip service to the undue burden standard articulated in Casey. He shuns longstanding precedent and chooses instead to impose his own moral standards on Jane Doe.

   “In a heated dissent in Priests for Life v. HHS, Judge Kavanaugh argued that the Affordable Care Act’s existing accommodations for religious employers that wanted an exception from the contraception coverage policy still placed a substantial burden on the employers’ beliefs. Multiple cases referring women’s access to birth control are working their way through the courts. A Justice Kavanaugh could become a decisive vote on the Supreme Court limiting access to reproductive care.

   “Maryland is home to many rivers which are part of the vast Chesapeake Bay watershed. The land and waterways that supply our drinking water, support our native ecosystems, and contribute to our tourism and local economies are all at stake.

   “Whether allowing more toxins in our air or more nuclear waste in our backyards, Judge Kavanaugh has prioritized corporate America over the health of American citizens and our environment.

   “Justice Kennedy understood the values of Americans when weighing the costs and benefits of environmental protection. Judge Kavanaugh has not shown such concern for balancing values and interests.

   “The Clean Air Act, which dramatically reduced these toxins after its passage in 1970, has prevented over 400,000 premature deaths, 1 million bronchitis cases, 2 million asthma attacks, and over 40 million children’s respiratory illnesses. Judge Kavanaugh heard several major cases about the EPA’s authority under the Clean Air Act. In each of these cases, he opposed the Agency’s position. These protections should be strengthened, not eroded.

   “As a lifelong Marylander and as a senior member of the Environment and Public Works Committee, I have prioritized the protection of the Chesapeake Bay; thus, I have worked to defend the EPA’s clean water rule, which has come under attack by Republican legislators and opponents in this administration. There are 67 percent of Marylanders who get their drinking water from sources that rely on small streams that are protected under the Clean Water Act.

   “Partisan and shortsighted threats put our environment, economy, and public health in danger. If these attacks prove successful, protecting our citizens from the danger of water pollution will become far more difficult.

   “So we are left with even more uncertainty with Judge Kavanaugh’s nomination. Would he support the clean water rule, which would protect the drinking water sources of 100 million Americans by making sure they are regulated under the Clean Water Act? We can all agree that few responsibilities of our government are more fundamental than clean, safe water, but I am not certain that Judge Kavanaugh would defend this duty on the Supreme Court.

   “As a member of the DC Circuit Court, Judge Kavanaugh has ruled in a number of high-profile cases to limit the EPA’s protection on issues like climate change and air pollution and against Maryland’s interests as a coastal, downwind State. He has consistently voted against environmental regulations and often in favor of corporate interests. Judge Kavanaugh’s environmental jurisprudence is rife with double standards, as he has frequently attempted to insert cost considerations into environmental regulations where none exist in statute.

   “Furthermore, he places a very low burden of proof on businesses claiming injury from regulation, while at the same time asserting a much higher standard of proof for citizens arguing that pollution is sufficiently harmful to warrant regulation. The following cases involving Judge Kavanaugh document his support of powerful interests over public interests in the areas of public health and the environment.

   “In EME Homer City Generation, LP v. EPA, Judge Kavanaugh wrote an opinion overturning an EPA rule designed to lower smog-forming sulfur dioxide emissions by 73 percent and nitrogen oxide emissions by 54 percent. The Supreme Court later ruled in favor of the EPA and overruled Judge Kavanaugh’s opinion. Nitrogen oxides account for two-thirds of the airborne nitrogen that ends up in the Chesapeake Bay.

   “In the case of the Coalition for Responsible Regulation v. EPA, Judge Kavanaugh dissented from a decision not to rehear a case which had found that the EPA had the ability to regulate emissions in order to slow climate change.

   “In the case of White Stallion Energy Center v. EPA, in a dissent, Judge Kavanaugh insisted that the EPA must take costs to business into account when judging regulation, attempting to argue that instead of determining what is best for public health, the EPA should determine what is the least costly to business.

   “In Clean Air Council v. Pruitt, Judge Kavanaugh dissented to a DC Circuit determination that the EPA was unreasonably delaying the implementation of a 2016 rule that curbed fossil fuel emissions of methane, smog-forming volatile organic compounds, and toxic air pollutants.

   “In Mexichem Fluor, Inc. v. EPA, Judge Kavanaugh sided with producers of hydrofluorocarbons, saying the EPA had no authority to regulate them.

   “In Mingo Logan Coal Co. v. EPA, Judge Kavanaugh dissented again and argued that the EPA must weigh the cost to business of revoking Clean Water Act permits.

   “In each of these cases, Judge Kavanaugh sided with corporate interests over public health. There is a clear record here.

   “My concerns about Judge Kavanaugh also include his lack of sensitivity to the protections of civil rights.

   “In the case of South Carolina v. Holder, Judge Kavanaugh ruled that South Carolina’s voter ID law was not discriminatory and did not violate the Voting Rights Act. South Carolina residents are required to use driver’s licenses, passports, military IDs, or voter registration cards to vote. Judge Kavanaugh disregards section 5 of the Voting Rights Act and impedes on the voting rights of minorities who are impacted by South Carolina’s voting laws. We all know how difficult it is in minority communities when you have these ID laws. We know how difficult it is for older people to get to places to get their identification. This sends a dangerous signal about Judge Kavanaugh’s views on voting rights and racial justice in America.

   “Judge Kavanaugh’s ideological bias can also be seen in his rulings in employment discrimination cases, in which he has dissented and voted to dismiss claims that a majority of his DC Circuit colleagues have found to be meritorious.

   “In Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, Judge Kavanaugh dissented from a majority decision which held that under the Congressional Accountability Act, an African-American woman fired from her position as House of Representatives deputy budget director could pursue her claim of racial discrimination and retaliation in Federal court, giving her a right of action.

   “Judge Kavanaugh dissented from that. He argued that the speech and debate clause of the Constitution prohibited the employee from moving forward with her claims, and he would have dismissed the case. His interpretation of this constitutional provision would bar workers in congressional offices and throughout the legislative branch from pursuing most of their discrimination claims in Federal court, including many sexual harassment, discrimination, and retaliation claims, only leaving available an inadequate and secret remedy.

   “In Miller v. Clinton, the majority held that the State Department violated the Age Discrimination in Employment Act when it imposed a mandatory retirement age and fired an employee when he turned 65. The State Department argued that it was exempt from the statute in light of a separate Federal law that permits U.S. citizens who are employed abroad to be excepted from U.S. anti-discrimination laws.

   “The majority disagreed and held that there was nothing in the Basic Authorities Act that abrogates the broad proscription against personnel actions that discriminate on the basis of age and that the necessary consequences of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex. Judge Kavanaugh dissented, arguing that the Basic Authorities Act overrides existing anti-discrimination laws. His willingness to embrace such a broad exemption from anti-discrimination laws is troubling.

   “Once again, we see a pattern in Judge Kavanaugh’s rulings, favoring the powerful over individual rights.

   “In Rattigan v. Holder, Judge Kavanaugh dissented from a majority decision which ruled that an African-American FBI agent could pursue a case of improper retaliation for filing a discrimination claim, where the agency started a security investigation against him, as long as he did so without questioning unreviewable decisions by the FBI’s Security Division. He stated that the entire claim must be dismissed despite the majority’s warning that this was not required by precedent and that the courts should preserve ‘to the maximum extent possible Title VII’s important protections against workplace discrimination and retaliation.’ Judge Kavanaugh was in the minority on that opinion.

   “Judge Kavanaugh’s dissents in these cases embrace positions that carve out Federal employees from the protections of Federal employment discrimination laws or limit their ability to enforce such rights.

   “Judge Kavanaugh has a pattern of ruling against workers and employees in other types of workplace cases as well, such as workplace safety, worker privacy, and union disputes. Let me cite a few examples.

   “In SeaWorld of Florida, LLC v. Perez, Judge Kavanaugh once again dissented from a majority opinion upholding a safety citation against SeaWorld following the death of a trainer who was working with a killer whale that had killed three trainers previously. While the majority deferred to the Occupational Safety and Health Review Commission’s finding that SeaWorld had insufficiently limited the trainers’ physical contact with the whales, Judge Kavanaugh strongly disagreed and questioned the role of government in determining the appropriate levels of risk for workers.

   “In National Labor Relations Board v. CNN America, Inc., Judge Kavanaugh dissented in part from Chief Judge Garland’s majority opinion upholding a National Labor Relations Board’s order that CNN recognize and bargain with a worker’s union and finding that CNN violated the National Labor Relations Act by discriminating against union members in hiring. Judge Kavanaugh dissented from the finding that CNN was a successor employer, and his position would have completely absolved CNN of any liability for failing to abide by the collective bargaining agreement.

   “In National Federation of Federal Employees v. Vilsack, Judge Kavanaugh dissented from the DC Circuit majority’s ruling that invalidated a random drug testing program for U.S. Forest Service employees at Job Corps Civilian Conservation Centers. The majority, which included another Republican-appointed judge, observed that there was no evidence of any difficulty maintaining a zero-tolerance drug policy during the 14 years before the random drug testing policy was adopted and that the primary administrator of the Job Corps, the Department of Labor, had no such policy. That didn’t affect Judge Kavanaugh–he dissented and would have restricted employees’ privacy rights.

   “In American Federation of Government Employees, AFL-CIO v. Gates, Judge Kavanaugh authored the majority opinion that reversed the lower court’s partial blocking of Department of Defense regulations, which had found that many of the Pentagon’s regulations would ‘entirely eviscerate collective bargaining.’ Judge Kavanaugh disagreed. Judge Tatel dissented in part, noting that Judge Kavanaugh’s majority opinion would allow the Secretary of Defense to ‘abolish collective bargaining altogether — a position with which even the Secretary disagrees.’

   “In Heller v. District of Columbia, after the Supreme Court decided 5 to 4 in the 2008 case of District of Columbia v. Heller that the Second Amendment protects an individual’s right to bear arms, Washington, DC, passed laws that prohibited assault weapons and high-capacity magazines and that required certain firearms to be registered. We know the Heller decision, and we know the importance of the Heller decision’s extending individual rights under the Second Amendment. Yet, after the District passed a law involving assault weapons and high-capacity magazines, the same plaintiff, Richard Heller, argued that the new gun laws violated the Second Amendment.

   “In the 2011 case of Heller v. District of Columbia, a panel of three Republican-appointed judges ruled 2 to 1 that DC’s ban on assault weapons and high-capacity magazines was constitutional. It happened to be three Republican-appointed judges. The ruling was 2 to 1. You guessed it — Judge Kavanaugh was the dissenter and would have held that the ban on assault weapons was unconstitutional. He wrote in that opinion that there was no difference between handguns and assault weapons in that regard. I find that very troubling if he does not see the difference between a handgun and an assault weapon.

   “A Justice Kavanaugh would worsen the problems caused by the Supreme Court’s decision in Citizens United, which gave corporate speech First Amendment protection, increasing the flow of money into our elections. His record indicates he would continue opening the floodgates of dark and secret money into our political system. We have enough money already in the system, and we don’t need more. A Justice Kavanaugh, to me, would mean an open season on more special interest money getting into our election system.

   “In the case of EMILY’s List v. Federal Election Commission, Judge Kavanaugh wrote the opinion for a conservative three-judge panel that struck down FEC rules that were developed to address the influx of spending by outside groups and paved the way for the creation of super PACs.

   “Judge Kavanaugh has been critical of the Chevron deference. Under Chevron, which is named for a 1984 Supreme Court opinion, courts defer to reasonable agency interpretations when Congress has been silent or ambiguous on an issue.

   “In a 2017 speech at Notre Dame that honored Justice Scalia, Judge Kavanaugh said: ‘The Chevron doctrine encourages agency aggressiveness on a large scale. Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes. I saw this firsthand when I worked in the White House, and I see it now as a judge.’

   “Judge Kavanaugh’s proposed solutions to Chevron is to simply determine the best reading of the statutes, and courts would no longer defer to agencies’ interpretations of statutes. Such an interpretation would put environmental, public health, and consumer protection interests at great risk.

   “Judge Kavanaugh would have struck down the Consumer Financial Protection Bureau as unconstitutional when he wrote the majority opinion in a panel decision. An en banc panel of the DC Circuit ultimately vacated that and remanded Judge Kavanaugh’s decision, upholding the constitutionality of the Dodd-Frank reforms, including the Consumer Financial Protection Bureau.

   “That is what is at risk with a Justice Kavanaugh–that type of decision-making that hinders consumer protection, public health, and environmental issues.

   “The purpose of the Chevron doctrine is to allow government agencies to carry out congressional intent, as our agencies are carrying out and interpreting increasingly complex statutes. Judicial review of such interpretations is governed by a two-step framework that was included in the Chevron case.

   “The Chevron framework of review usually applies if Congress has given an agency the general authority to make rules with the force of law. If Chevron applies, a court asks at step one whether Congress directly addressed the precise issue before the court, using traditional tools of statutory construction. If the statute is clear on its face, the court must effectuate congressional intent. However, if the court concludes instead that the statute is silent or ambiguous with respect to the specific issue, the court proceeds to Chevron’s step two.

   “At step two, courts defer to the agency’s reasonable interpretation of the statute. This is just common sense. Even the late conservative Justice Antonin Scalia defended the Chevron doctrine as an important rule-of-law principle.

   “As the Leadership Conference on Civil and Human Rights has stated, Federal agencies issue regulations addressing a wide array of civil and human rights issues, including environmental protection, immigration policy, healthcare protection, education laws, workplace safety, and consumer protections. A Justice Kavanaugh will put all of these protections at risk.

   “Judge Kavanaugh’s performance at his hearing and his answers to questions for the record did not provide me any additional comfort about his nomination. Indeed, Judge Kavanaugh’s testimony, judicial record, and legal career reveal a disturbing pattern.

   “I believe he would be a Justice with an activist, conservative agenda who could disregard precedent to reach a desired outcome. A Justice Kavanaugh could serve as a rubberstamp for the worst successes of the Trump administration.

   “Judge Kavanaugh had several opportunities to stand up for the independence of the judiciary and the rule of law. He has refused to condemn President Trump’s attack on Justice Ginsburg or Judge Curiel due to his Mexican heritage. I recall by contrast, when we had Judge Gorsuch before us with his confirmation hearings, he said that ‘when anyone criticizes the honesty or integrity, the motives of a Federal judge, well, I find that disheartening, I find that demoralizing, because I know the truth.’ Judge Kavanaugh wouldn’t even go that far.

   “Judge Kavanaugh refused to comment on President Trump’s repeated attempts to politicize criminal prosecutions at the Department of Justice.

   “His testimony following Dr. Ford’s testimony is particularly troubling. His tirade against members of the Judiciary Committee, his partisan attacks, and his conspiracy theories reveal real concerns to me about his impartiality and judicial temperament and whether he would be a partisan on the Court. The American people want an independent voice on the Supreme Court to protect their individual rights against those in power, be it the President or powerful corporate interests.

   “Under our Constitution, the courts must act as an independent branch of government and as a check and balance against the abuse of power. The Supreme Court is the guardian of America’s constitutional rights against the powerful. After reviewing Judge Kavanaugh’s record, I believe he is not the right choice to safeguard these fundamental principles. I will vote no on his confirmation to the Supreme Court.”

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