Mike Lee for the Supreme Court?

President Trump is reportedly considering the 47-year-old Utah Senator to replace Anthony Kennedy.

Jennifer Jacobs for Bloomberg (“Trump Weighing Senator Mike Lee for Supreme Court Vacancy, Sources Say“):

President Donald Trump has asked advisers their opinions about nominating Utah Senator Mike Lee to replace Justice Anthony Kennedy on the Supreme Court, according to three people familiar with the matter.

It remains early in the selection process for a nomination that will be a crucial part of Trump’s legacy, choosing a justice who is likely to serve on the court for decades and cement its ideological balance to the most conservative in generations.

Trump hasn’t settled on a favorite yet for the nomination, two of the people said. And even as the president mulls the 47-year-old Lee as a potential choice, the search for Kennedy’s successor remains wide open.

Trump thinks Lee would be easily confirmed by the Senate, but the president has expressed concern about keeping his Senate seat in Republican hands, one person said. All of the people spoke on condition of anonymity to describe private deliberations.

He has been assured the seat will remain safely Republican, the person said. Trump complained that he was told the same about the Alabama Senate seat held by Attorney General Jeff Sessions, who wound up replaced by Democrat Doug Jones.

Trump is actively considering other candidates. Brett Kavanaugh, a judge on the D.C. Circuit Court of Appeals, is said to be another top contender.

Lee has publicly denounced the Supreme Court’s landmark 1973 Roe v. Wade abortion rights ruling, which could complicate his confirmation. Many of the other potential nominees, most of whom are judges, haven’t taken as clear a position on reversing the precedent.

Lee was on a list of possible Supreme Court nominees that Trump released during his presidential campaign, even though he declined to endorse the real estate mogul for election and said he voted for independent candidate and fellow Utahan Evan McMullin instead as “a protest vote.”

That Lee is not a Trump loyalist—indeed, has been an active opponent—almost surely means that he won’t be selected.

This trial balloon, assuming that’s what it is, does give us an opportunity to reflect on the qualifications and attributes we should expect in a Supreme Court Justice in a way that we haven’t seen the ill-fated Harriet Meyers nomination over a dozen years ago. Very longtime readers will recall that, despite having twice voted for George W. Bush to be President, I opposed confirming Miers on the grounds she was too mediocre for the post.

My starting position on Lee would be the same. A quick scan of his resume via Wikipedia reveals that he has both an undergraduate and law degree from Brigham Young, a perfectly fine but not top-tier university. Given his Mormon roots, though, that’s hardly surprising and there’s something to be said for having someone on the court who went to neither Harvard nor Yale, fine institutions though they are.  He followed that with very fine if not top-tier clerkships: “Lee began his career as a clerk for the U.S. District Court for the District of Utah before serving as a clerk for future Supreme Court Justice Samuel Alito, who was then a judge on the Third Circuit Court of Appeals.”

His career since then is, again, fine:

He then entered private practice with the Sidley Austin law firm in Washington D.C. In 2002, Lee returned to his home state to work as an Assistant United States Attorney for the District of Utah, a position he held until 2005. Subsequently, he joined the administration of Utah Governor Jon Huntsman, serving as the general counsel in the office of the governor from 2005 to 2006. Lee then reentered private practice in Washington D.C., with Howrey LLP.

In 2010, at the beginning of the Tea Party movement, Lee entered the party caucus process to challenge incumbent three term Republican Senator Bob Bennett. Lee went on to defeat Bennett and business owner Tim Bridgewater during the nominating process at the Utah Republican Party Convention, receiving 1,854 votes in the final round. The two highest caucus performers were then put before primary voters, with Lee winning with 51% of the vote. He then defeated Democratic candidate Sam Granato in the general election with 61% of the vote to Granato’s 32% . . .

As a legal mind, then, Lee’s CV looks very Harriet Miers-like:  perfectly well-qualified by training and experience but not top-drawer. And the country deserves a top legal mind to serve a one-ninth of our Supreme Court.

Still, aside from the fact that, as a woman, Miers was something of a trail-blazer, Lee’s experience is certainly a level or two up from hers. And I like the fact that he has experience in the judiciary, as an Assistant US Attorney, an advisor to a governor, time in private practice, and in the U.S. Senate. I think having a Supreme Court with people whose entire life experience has been as judges and/or Executive appointees is limiting. And, perhaps, opening up the experiential scale requires sacrificing evidence of brilliance as a legal thinker.

Leaving aside his Tea Party roots—I find them a red flag but have the general view that relatively mainstream ideological positions aren’t disqualifying—the fact that he has not only been outspoken on abortion and other issues that will come before him on the Court is problematic. To be sure, there was a time, pre-Bork, that we knew a lot more about the political views of SCOTUS picks. But that was a generation ago and no longer the norm.

Again, I think it extremely unlikely Trump will ultimately appoint someone who backed an opponent in the general election. And I’d ultimately prefer a more traditional pick along the lines of a John Roberts or Neil Gorsuch. But I’d have an open mind about Lee were he the nominee.

FILED UNDER: Congress, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. teve tory says:

    I’m sure Trump, currently under investigation, will be interviewing Mike Lee just as he interviewed Comey: “Are you going to be loyal to me?”

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  2. teve tory says:

    Lee has publicly denounced the Supreme Court’s landmark 1973 Roe v. Wade abortion rights ruling, which could complicate assure his confirmation

    You’re welcome Bloomberg.

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  3. James Joyner says:

    @teve tory: Well, the presumption is that having taken such a public position on a matter that might come before the Court is problematic. It has been post-Bork. I’m not sure that it will be in this instance.

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  4. Without expressing an opinion on Lee at this time, I do think it would be good if we had at least a few people on the Supreme Court who came from somewhere other than one of the Circuit Courts of Appeal. Obama did that when he picked Kagan, his former Solicitor General, for the Court but her position made her part of a rarified elite to begin with

    Previously we’ve had Justices who were Senators (Hugo Black), State Supreme Court Justices (O’Connor), politicians (Earl Warren), and even people whose only previous experience was as a law clerk, JAG Officer, and Law Professor (Felix Frankfurter). In addition to picking people whose educational background wasn’t limited to the Ivy League, it might be a good idea to have a few Justices who have experience in these areas rather than the rarified atmosphere of law school professorships and the Circuit Courts Of Appeal.

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  5. Joe says:

    I have to disagree with some of your basic criticisms of Lee’s SCJ resume. Though Lee is not the politician I would want (far from it), I like the idea of some justices arriving through a completely different route than Ivy League education and long prosecutor/appellate career. We have plenty of those people and they serve a purpose. I would like another Brennan or Warren. I think it would broaden the thinking and engender either more measured cynicism toward the political branches or more deference to their authority – I am not sure I would like all the outcomes, but I would prefer that the justices as a group have the broadest possible experience, something the SC has not been historically famous for.

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  6. @Joe:

    Actually, before the last 20-odd years or so, SCOTUS has been more broad-based than it is now, as I note with the examples I mention in my comment above.

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  7. teve tory says:

    @James Joyner: I expect his loud denouncement of Roe will slow down his confirmation roughly the same degree as a bumblebee’s impacting the windshield slows down a Porsche 911 Gt3.

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  8. wr says:

    I think the notion that anyone is looking for a “top tier” mind here. The Senate Republicans want a reliable vote that will always favor corporations over individuals, the rich over the poor, whites over minorities, and Republicans over Democrats. Which is what they have in a hack like Gorsuch.

    Sure, they might get better press if their new justice can come up with pretty words to explain why he’s voting to allow Texas to prohibit minorities to vote or allow the death penalty for women who get abortions when impregnated by people other than Republican congressmen, but that doesn’t really matter. No one gets to second guess the court, so they can have Jeanine Pirro write an opinion that “I’m voting this way because winners rule and losers drool” and there’s nothing anyone can do about it.

    It might as well be Mike Lee. He’s actually kind of a dope, but he will reliably vote for the unquestioned rule of rich white men over everyone else, so why not?

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  9. Daryl and his brother Darryl says:

    James..
    Your comment from the other thread was just nullified.

    Nobody with a legal mind worthy of sitting on the Court is going to back a Trumpian attempt to override an impeachment with a pardon.

    Lee voted against Dennison in the beginning but since has become a reliable cult member.

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  10. teve tory says:

    My prediction from yesterday being so quickly confirmed, I posit a new one: If, somehow, Dems don’t win congress this fall, the GOP will go ahead and pass a nationwide ban on abortion.

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  11. teve tory says:

    I think the notion that anyone is looking for a “top tier” mind here.

    ?

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  12. SKI says:

    Lee won’t be the nominee.

    If Lee is nominated and McCain is unavailable, the path to not proceed until after the election just became doable…

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  13. wr says:

    @teve tory: Yeah, seem to have left out a phrase “is ridiculous.”

    Thanks for the catch.

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  14. An Interested Party says:

    Previously we’ve had Justices who were Senators (Hugo Black), State Supreme Court Justices (O’Connor), politicians (Earl Warren), and even people whose only previous experience was as a law clerk, JAG Officer, and Law Professor (Felix Frankfurter). In addition to picking people whose educational background wasn’t limited to the Ivy League, it might be a good idea to have a few Justices who have experience in these areas rather than the rarified atmosphere of law school professorships and the Circuit Courts Of Appeal.

    I’m sure the only qualifications for this pick will be that he is a hard right ideologue who is as young as possible…nothing else really matters…

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  15. Daryl and his brother Darryl says:

    Does anyone really think Dennison will not demand a loyalty pledge, in addition to promises related to legal issues related to the Russia probe?

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  16. Kylopod says:

    @Doug Mataconis:

    Previously we’ve had Justices who were Senators (Hugo Black), State Supreme Court Justices (O’Connor), politicians (Earl Warren), and even people whose only previous experience was as a law clerk, JAG Officer, and Law Professor (Felix Frankfurter).

    There was a time when it was standard to pick politicians for the Court, including one former president (Taft) and another nominee (Charles Evan Hughes, who actually stepped down from his SCOTUS seat to run for president and was then later reappointed). Earl Warren was, of course, the governor of California and the 1948 Republican vp nominee.

    After Warren, this became much less common. To my knowledge the last justice to have held any sort of elected position was Sandra Day O’Connor, who was once a state senator. As you mention, most justices today come from the Court of Appeals.

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  17. Franklin says:

    Miers was something of a trial-blazer

    Kind of punny.

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  18. Daryl and his brother Darryl says:

    Miachael Cohen

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  19. Roger says:

    Lee is not my choice, but that’s for ideological reasons, not for any of the reasons listed in this post. We are at a point where a history of Harvard/Yale law school to prestigious clerkship to professor/appellate judge should be disqualifying. That background is great, but as others have noted it is not the only great background. Five Harvard grads and three Yale grads might be enough for one court.

    There are, believe it or not, men and women with great legal minds who did not go that route. It would be interesting to see if our jurisprudence changed any if we had just one Justice who had spent even a year defending poor people accused of committing crimes. Maybe, for example, the rule on qualified immunity would look a little difference, or habeas corpus would still exist instead of being replaced by the watered down farce of the AEDPA, if a justice or two had sat beside someone with a battered face who couldn’t make bail on his contempt of cop charge.

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  20. teve tory says:

    what roger said.

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  21. CSK says:

    It will, as some people here have observed, come down to who grovels the most to Trump during the interview. Seriously. That will be the deciding factor.

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  22. OzarkHillbilly says:

    @Roger:

    It would be interesting to see if our jurisprudence changed any if we had just one Justice who had spent even a year defending poor people accused of committing crimes. Maybe, for example, the rule on qualified immunity would look a little difference, or habeas corpus would still exist instead of being replaced by the watered down farce of the AEDPA, if a justice or two had sat beside someone with a battered face who couldn’t make bail on his contempt of cop charge.

    Yep, but that sure ain’t Mike Lee.

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  23. teve tory says:

    I’m 41. I was born in 1976. The last time a majority of SCOTUS justices had been appointed by Democrats was 1969. GOP recently got Roberts, Alito, Gorsuch and whoever they’re about to get. If Thomas or RBG retires, and is replaced by trump, I could conceivably spend my entire life under a Republican court.

    Yay me.

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  24. Stormy Dragon says:

    Mike Lee endorsed Roy Moore.

    I consider that disqualifying.

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  25. teve tory says:

    OT sean Hannity is blaming Maxine Waters for the newspaper shooting. Sure, yesterday Trump called journalists the “Enemy of the People”, but it’s Waters’s fault.

    “I’ve been saying now for days that something horrible was going to happen because of the rhetoric. Really, Maxine?”

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  26. Kylopod says:

    @teve tory: Let’s recall that this is the same guy who stood firmly by Sarah Palin when she claimed to have been the victim of a “blood libel” after the Tucson shooting.

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  27. teve tory says:

    @Kylopod: Maybe she picked up that phrase from her Rabbi? 😛

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  28. HarvardLaw92 says:

    Not sure if anybody has seen yet, but it appears that all these Trumpidian attacks on the press are coming home to roost.

    Some nut with a long gun and apparently an improvised explosive device just shot up a newsroom in Maryland. Five confirmed dead.

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  29. teve tory says:

    @HarvardLaw92: It’s early; We probably won’t know for days what caused this. Could be related to layoffs at the paper. But if it was political, here’s just a few times Trump called reporters “Enemies of the People”, as he did again this week.

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  30. Kylopod says:

    @teve tory: I don’t know if she picked it up from Rabbi Sean O’Reilly, but she did receive a spirited defense from Alan Dershowitz, in one of the earliest signs that he’d jumped the shark.

    https://www.theatlantic.com/national/archive/2011/01/alan-dershowitz-defends-palin-on-blood-libel/339190/

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  31. HarvardLaw92 says:

    @teve tory:

    I’ve heard from sources within the department in Anne Arundel that the guy they’ve arrested chemically / mechanically removed his fingerprints. This won’t turn out to be a disgruntled employee.

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  32. teve tory says:

    I heard the same thing on twitter. It’s just, as a 30-year news junkie–I was a liberry junkie before the internet came around*–I’ve stopped putting any stock in emergent information. False information is the norm for hours and sometimes days.

    (*I still am a Liberry junkie. When the local county liberry got only a single copy of the new Carreyrou book Bad Blood, I was 9th in line on the reserve list. Annoyed, I had a nearby county transfer a copy to the closest of their branches to me. Now I just have to drive 20 mi to High Springs to pick it up. I have liberry cards like Wal-Mart has Hot Pockets. 😛 )

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  33. HarvardLaw92 says:

    @teve tory:

    It’s looking like he’s going to turn out to be some sort of crazy (non-employee) who has a beef with the paper. I got the fingerprint insanity info from cops I know down there.

    Interestingly, Bucket ‘O Chicken the press secretary is now bleating about how an attack on the press is an attack on every American.

    No shit, Marge … 🙄 Tell that to your boss …

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  34. grumpy realist says:

    @HarvardLaw92: Two pieces of scuttlebutt (NO idea whether either of them are true and am not giving further claimed details:)

    1) Police have identified the shooter using facial recognition. (If true, I want to know how they populated their database.)
    2) Shooter has been identified as someone who lost a court case against the newspaper just recently.

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  35. SKI says:

    @grumpy realist: the court case was in 2012 and he lost his appeal in 2015

    He sued for defamation because they reported, accurately, that he had been convicted. http://www.capitalgazette.com/news/ph-ac-cn-jarrod-ramos-ruling-0923-20150922-story.html

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  36. HarvardLaw92 says:

    @grumpy realist:

    1) Police have identified the shooter using facial recognition. (If true, I want to know how they populated their database.)

    This particular crazy has a criminal record.

    2) Shooter has been identified as someone who lost a court case against the newspaper just recently.

    This is correct, although the judgment was entered in 2015. I haven’t scanned the archives in depth for subsequent actions yet, but here’s the opinion from the COSA in that matter.

    Certified looney tune …

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  37. CSK says:

    His name is Jarrod Warren Ramos.Apparently he represented himself in his defamation suit against the paper.

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  38. gVOR08 says:

    @HarvardLaw92:

    Certified looney tune …

    Oh yeah. Thanks for the link.

    The world will always have the mentally impaired, but we didn’t used to have a culture that ensured most of them have guns.

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  39. MarkedMan says:

    Back to the original subject. FWIW, Republicans haven’t gone for intellectual people in top positions since Nixon (despite his crippling faults, he had a solid analytical mind). So Lee, being a maroon, fits right in with that. And sorry James, but the idea that any Republican appointed judge is going to respect norms and recuse in sensitive situations is just not going to happen. It’s not just Thomas that has refused to recuse himself in situations where conflict of interest is glaringly obvious. Alito and Scalia are also guilty of that. Here’s what I think he will be promising behind closed doors:
    – Side with Trump and against the FBI or Justice Department in anything that comes before him
    – Will not recuse himself for anything important to Trump or the rest of the Republicans
    – Will side with business at all times
    – Will help dismantle Obamacare, SS, Medicaid/care, etc
    – Will overturn abortion rights

    And there is no hope that a Tea Party member will ever develop a heart, or sympathy for brown or poor people.

    We will be dealing with Trump’s Trash for decades

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  40. grumpy realist says:

    @HarvardLaw92: So after stewing about the Great Injustice the newspaper did to him, he gets a gun and proceeds to shoot up the newspaper. Probably went after them because he couldn’t get at the judge quite so easily.

    So now he’ll be in the dock on multiple murder and GBH counts, undoubtedly convicted, and locked up for life.

    Hell of a way to run your life, son. Smart boy!

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  41. Modulo Myself says:

    The guy was basically a Jordan Peterson fan. He harasses a woman for turning him down, which I’m sure struck him as odd. And then holds it against a newspaper for reporting on him. God knows what he was doing and reading, but there’s so much f–ing misogynist stuff out there that’s ‘legitimate’ because of Trump and pathetic white trash.

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  42. Mister Bluster says:

    People kill people with guns in this country because they can.

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  43. An Interested Party says:
  44. MBunge says:

    It’s nice to see HarvardLaw92’s keen insights into the world remain as sharp as ever.

    To review, the scorecard for the Trump Era is:

    Left-winger shooting Republicans -1.
    Right-winger shooting Democrats -0.

    But keep on hoping!

    Mike

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  45. michilines says:

    I’m actually surprised that memeorandum has this at the top of its feed.

    I’m saddened that none of the writers here have thought to post about it.

    I hope that maybe there will be something in the mix of those two points that will perhaps make a difference. It’s just a hope.

    For what it is worth, the previous comment was not there when I made my comment. My hope is that there might be a way for people to stop killing each other and that one of the aggregators of hate might take the killing of their own seriously.

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  46. Gustopher says:

    @michilines:

    I’m saddened that none of the writers here have thought to post about it.

    What is there to say about it that hasn’t been said about dozens of other mass shootings?

    We are a country awash with guns. There are as many gun deaths each year as automobile deaths, but the most we can do is offer thoughts and prayers if the shooter is white, and racially tinged condemnation it he is not. People will argue over whether he was a leftie or a rightie, whether he was motivated by the demons he heard in his head, in his church or on his tv.

    There are a few odd details each time — this time it is someone who thought Professor Snape looked cool in the Harry Potter movies, so he got the haircut — but the story is depressingly similar every time.

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  47. michilines says:

    @Gustopher: I know.

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  48. TM01 says:

    @wr:

    . The Senate Republicans want a reliable vote that will always favor corporations over individuals, the rich over the poor, whites over minorities, and Republicans over Democrats. Which is what they have in a hack like Gorsuch.

    Unsurprisingly, you have just shown again how totally stupid you are.

    I want a Justice that interprets the law and follows the Constitution.

    And sometimes that means that a corporation prevails over an individual, or a white person prevails over a black person.

    But you just want pretty decisions based on skin color and emotion. You don’t give a shit shit the law itself.

    You hack.

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  49. TM01 says:

    An interesting idea I heard yesterday was to bring Miguel Estrada back for a SCOTUS nomination.

    Let’s see that Sack of Durbin oppose someone just for being Latino. Again.

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  50. TM01 says:

    @MarkedMan:

    And there is no hope that a Tea Party member will ever develop a heart, or sympathy for brown or poor people.

    Gods but people like you make me SO happy Trump won. And you can’t figure out why people love him.

    I’m sure you just love those Brown people. SO much. I mean, SOMEONE has to care for them, right? And hey, as long as you keep supporting govt programs that Help them, you’ve done your part. You use all the right hashtags, so I know you Care. Meanwhile you don’t give a shit about the outcomes of the crap you support. Schools for poor black children still suck? Hell, hashtags and spend more money! Problem solved! So what if another generation of black kids grows up uneducated and poverty stricken? You supported them! And that’s all that matters. You measure success by the inputs, not the outputs, and anyone who questions you is Racist.

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  51. TM01 says:

    @HarvardLaw92:

    Trumpidian attacks on the press are coming home to roost.

    And the SPLC is just totes innocent of everything.

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  52. wr says:

    @TM01: Looks like TM01 is so giddy at the news he cracked open that third bottle of Ripple last night.

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  53. HarvardLaw92 says:

    @wr:

    Well, you know, when Jenos gets drunk, all of his sock puppets tend to get drunk as well. Funny that 🙂

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