Will Boumediene and Heller bring conservatives closer to McCain?

posted at 10:08 am on June 28, 2008 by Ed Morrissey

According to Ben Adler, the conservative base has begun to warm to John McCain on the issue of judicial appointments.  The Politico reporter credits this to McCain’s selection of advisers on the judiciary, including conservative stalwarts like Fred Thompson and Ted Olson, as well as McCain’s May 6th speech outlining his philosophy on the role of the judiciary.  However, two 5-4 Supreme Court decisions this week may provide even more incentive for reluctant conservatives to pull the lever for McCain:

Conservatives may not be enamored of John McCain, but on a subject that is near and dear to their hearts—legal philosophy and judicial appointments—they are finding a lot to like about the Arizona senator.

Between his campaign trail rhetoric and a stable of legal advisors who are well-regarded in conservative circles, McCain is winning over converts who at one time harbored deep suspicions about his commitment to appointing reliably conservative judges.
.
It’s a surprising turn of events for a candidate who was once booed at the Conservative Political Action Conference and especially for one who played a key role in brokering the “Gang of 14” compromise in 2005, a deal that some conservatives contend undermined the Republicans’ opportunity to ban filibusters against judicial nominees.

This newfound respect is rooted in the widely-held belief that, if elected, McCain will appoint high court justices like George W. Bush appointee Chief Justice John Roberts, rather than David Souter, the George H.W. Bush appointee viewed by conservatives as a deep disappointment due to his liberal to moderate record.

If momentum had turned that way before this past week, the Boumediene and Heller decisions have put judicial nominations back on the forefront of the campaign.  In the former, five justices claimed to find a right to habeas corpus for foreign unlawful combatants held abroad during a time of war despite never having a single precedent of such a detainee having ever been granted access to the American civil court system.  The latter case pleased conservatives, but the 5-4 split showed how close the court came to effectively neutering the 2nd Amendment.

In the next term, the President will have to replace at least one Justice, and possibly as many as three.  That makes this a critical election for conservatives, especially those concerned with the corrosive effects of judicial activism.  Barack Obama has pledged to nominate jurists interested in “social justice” rather than a strict reading of the Constitution and limiting the scope of the judiciary.  As Rudy Giuliani noted then, that makes the comparison rather stark:

KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”

Why the laughter?

GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.

And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.

I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?

George Will wrote yesterday that Heller took the issue of gun rights off the table for this election, but it didn’t do that at all.  The court will have to extend its thinking on Heller over the next several years, deciding what constitutes legitimate restrictions based on compelling state interests and what constitutes overreach.  How those cases get decided will rely on how the composition of the court changes over that period.  As Boumediene demonstrates, the importance goes beyond even gun rights to vital areas of national security.  Will future courts grant even more rights to foreign terrorists held abroad, or will a court based more on judicial modesty return those questions to the legislature, where they belong?

The Supreme Court appointments made in the next term will have an impact that lasts twenty-five years.  Conservatives have legitimate issues with John McCain — but do they want Barack Obama making those appointments?


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Not just conservatives, but the American people in general are with McCain on these issues.

jgapinoy on June 28, 2008 at 10:15 AM

Heller definitely could be one that brings conservatives closer. Can we believe that FOUR justices believed that we DO NOT have the right to bear arms that was explicitly given in the second amendment? But we have a right to abortion that isn’t mentioned ANYWHERE?

The FOUR dissenters are dangerous to the rights of Americans.

originalpechanga on June 28, 2008 at 10:15 AM

Will Boumediene and Heller bring conservatives closer to McCain?

I doubt it. Will he, as president, still want to be a gang member (gang of 14 that is)?

Zorro on June 28, 2008 at 10:15 AM

Boumediene was decided 5-4. You wanna bet if Obamajebus is given a chance to reshape the court, someone won’t bring a suit to try and reverse it?

Sekhmet on June 28, 2008 at 10:17 AM

It’s still a few months until the election, and there’s some downtime this summer. McCain ought to sign up for an intro macro and micro-economics class. That would be very profitable for him in many ways.

JiangxiDad on June 28, 2008 at 10:17 AM

What about the Louisiana case, another 5-4 decision, and if anything, worse than the habeas corpus decision.

And I suspect that after the 08 elections, when we have a larger Democrat majority in the Senate, we’ll all be relieved that McCain took the nuclear option off the table.

rightwingprof on June 28, 2008 at 10:19 AM

Well something better bring the conservatives back around.
These two cases will help but a review of the HA boards doesn’t show much impact. We are still as polarized as ever.

Looking at the electoral map Obama could lose VA, OH, IN, and MO and still have 273ev’s by pulling PA, CO, and NM.

McCain will need more then SCOTUS to pull him past the line. Waiting for Obama to trip over his shoelaces isn’t going to cut it.

Limerick on June 28, 2008 at 10:24 AM

…..And I suspect that after the 08 elections, when we have a larger Democrat majority in the Senate, we’ll all be relieved that McCain took the nuclear option off the table.

rightwingprof on June 28, 2008 at 10:19 AM

Nope. The Donks will use the nuclear option within a week or so after everyone is sworn in with the next Congress. You can bank it.

JonRoss on June 28, 2008 at 10:29 AM

Strange that Will would make a claim like that, given that Democrats already consider the court system as their way of making law outside the legislative process. To think that they don’t consider Heller reversible in the short-term based on technicalities (i.e. the non-state nature of the District of Columbia) with a new president and the proper Supreme Court appointment(s) is silly.

McCain’s support on the right based on court appointments should also get a boost as Obama revises and extends his remarks on Heller and Kennedy decisions, where his most recent statements supporting the gun control and opposing the death penalty bad on child rape went against the views of judges he would be expected to appoint. While the big media outlets may not want to query him on those, in fear of what he might say, I can’t imagine the hard-line left holding their tongues on those remarks for the next five months, and Obama may have to do another bus drop with this week’s statements.

jon1979 on June 28, 2008 at 10:30 AM

Unfortunately, I can’t vote for McVain simply because he isn’t Obama.

Also, what kinds of assurances do we have that he will nominate strict constructionist jurors? Furthermore, the most he can do is nominate them. Congress must approve or deny them… i.e., Harriet Miers. Thus, I think the juror argument isn’t as strong as some believe.

McCain must earn my vote on things like economy, war, immigration, earmarks, size of govt, size of military, etc. Sure the SCOTUS jurors are in that list, but I don’t know if that single issue is enough to stop me from writing in Fred.

/puts-on-flame-retardant-suit

knob on June 28, 2008 at 10:30 AM

Well something better bring the conservatives back around.
These two cases will help but a review of the HA boards doesn’t show much impact. We are still as polarized as ever.

Looking at the electoral map Obama could lose VA, OH, IN, and MO and still have 273ev’s by pulling PA, CO, and NM.

McCain will need more then SCOTUS to pull him past the line. Waiting for Obama to trip over his shoelaces isn’t going to cut it.

Limerick on June 28, 2008 at 10:24 AM

Ed asks for McCain if people like it when John McCain does something right. Yeah, but so what. We expect him to. We expect everybody to. Not sure how that’s going to help him when he does someting wrong. Doesn’t work when my kids try it either.

JiangxiDad on June 28, 2008 at 10:33 AM

These 5/4 decisions that went the wrong way would have gone the right way had Republican president Bush 41 nominated conservative justices in the first place. Potential Obamians who get nominated for SCOTUS would be truly dangerous to our nation.

Mojave Mark on June 28, 2008 at 10:33 AM

If BO becomes President, it will be because of voters like knob (10:30AM), who would write-in a guy (Fred!) who will advise, campaign for, & vote for McCain, & probably serve in his Cabinet.

jgapinoy on June 28, 2008 at 10:37 AM

VIA Fred! and by virtue of Fred’s platform and Fred vetting judges for McCain. Maverick, don’t miss teh Fred! and don’t mess with the Constitution.

maverick muse on June 28, 2008 at 10:38 AM

JianxiDad

McCain does “something right” at least 80% of the time.
BO, 8%.

jgapinoy on June 28, 2008 at 10:39 AM

You have no choice conservatives. If he loses all your pissing and moaning won’t matter because you will have given away your country. In one self Righteous swoop.

tomas on June 28, 2008 at 10:40 AM

With Canada, France and Germany pushing liberals into the background, McCain must realize his liberal tendencies are signs of failing weaknesses. He has an honorable background, but his willingness to sellout our country in the McCain-Kennedy immigration debacle was so incompetent that it was embarrassing that something so ill conceived could even be brought to the floor of the Senate. When McCain makes a stupid decision, it is one that has the possibility of severely damaging our country.

volsense on June 28, 2008 at 10:41 AM

McCain does “something right” at least 80% of the time.
BO, 8%.

jgapinoy on June 28, 2008 at 10:39 AM

Very true. But that doesn’t work that well when my kids try it either. That’s my point. Ed is asking how well this is working for McCain. My answer is, just OK, not great.

JiangxiDad on June 28, 2008 at 10:42 AM

After I was certain how Heller would come out after listening to the oral arguements live, I was actually starting to get a little worried considering Justice Kennedy’s recent rulings.

I made the comment to my wife that if they upheld the ban as constitutional, then John McCain just won the election. Nothing would motivate people even slightly conservative, libertarian at the least, to vote for McCain than McCain himself ever could.

Unless, of course, he made some idiotic statement about agreeing with it in some fashion.

JamesLee on June 28, 2008 at 10:43 AM

JiangxiDad on June 28, 2008 at 10:33 AM

Yep. McCain can’t wait for the ‘base’ to come around, he has to go seek it out. Bad works from Obama isn’t half as important as good works by McCain.

Looooooonnnngggg summer Jiangxi. I’m keeping my Tums supply well stocked.

Limerick on June 28, 2008 at 10:43 AM

jgapinoy, Fred! immediately endorsed McCain upon his departure from the POTUS race. It is up to McCain to promote Fred! as his adviser, not visa versa. Fred can only contribute what McCain accepts. If McCain wants Fred! votes, McCain must endorse Fred’s platform. If McCain gets RNC funds and GOP donations, McCain must renounce RINO ideology and confess his conservative renaissance to the public. Otherwise, the only support McCain deserves is anti-Obama and he knows that only goes so far in turning out the voters on election day. If McCain wants commitment, he must make commitment. Endorse Fred’s Constitutional platform, and prove yourself an honorable Maverick, McCain!

maverick muse on June 28, 2008 at 10:45 AM

McCain must prove there is a difference between a young inexperienced fool and old experienced fool. Right now a fool is a fool and that does not bode well for him.

volsense on June 28, 2008 at 10:46 AM

It might help McCain but it wont take away from Obama either. As Charles Krauthammer said,

The anti-Bush, anti-Republican sentiment is simply too strong. Election Day is their day of revenge — for the Florida recount, for Swift-boating, for all the injuries, real and imagined, dealt out by Republicans over the past eight years.

The Constitution be damned, Election Day is Payback Day for many if not most on the Left.

Be prepared folks as I think we’re going to lose this one in November. The Left simply wants it more and nothing is going to prevent them from voting otherwise.

Yakko77 on June 28, 2008 at 10:48 AM

On Thursday morning, I was at a local coffee house with some of my political buddies. One had his laptop. 9:00 am CDT came around as we were waiting for the Heller decision. And it occurred to me that here I was on tenterhooks waiting for a decision that would affect me that had been decided probably by one man- Justice Kennedy. I expected the decision to 5-4. What I didn’t know was which way the 5-4 decision would be. And it occurred to me “This is just wrong.” The Constitution was written in the vernacular of the day, plain and direct so all could understand it. Yet here were at least 4 supposedly learned people who were and are so utterly predictable in their bias and have such incredible power over my life and its treatment and defense. Justice Breyer certainly proves that point-”In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.
I strongly disagree with Mr. Guiliani in his statement that the courts are there to interpret the law. A judge is there to interpret whether an act conforms to the law, or if a lesser law conforms to the greater law (as in the Heller decision, the DC ban does not conform to the 2nd Amendment). The problem is that the law gets “interpreted” then the act or lesser law is made to fit or not the new interpretation (witness McCain/Feingold and the 1st Amendment).
Many know me as a 2nd Amendment guy, despite my moniker. After I read the decision, I’ve told people that this fight is not over at all. How firearms are kept out of the hands of the mentally unstable ( and how that instability is defined), out of the hands of felons and what is “reasonable” and “common sense” will be determined by local and state politicos and many levels of the judiciary.
My question is assuming that McCain becomes President AND assuming he appoints Scalias and Janice Rogers Browns, not Souters or O’Connors, exactly how will he get them out of a hostile Senate Committee chaired by one Patrick Leahy or confirmed by a Senate composed of a Boxer, Feinstein, Schumer, Kennedy and my very own Klobuchar?
Let me know.
I’m stumped.

Amendment X on June 28, 2008 at 10:49 AM

volsense on June 28, 2008 at 10:46 AM

Stinging.

JiangxiDad on June 28, 2008 at 10:51 AM

My question is assuming that McCain becomes President AND assuming he appoints Scalias and Janice Rogers Browns, not Souters or O’Connors, exactly how will he get them out of a hostile Senate Committee chaired by one Patrick Leahy or confirmed by a Senate composed of a Boxer, Feinstein, Schumer, Kennedy and my very own Klobuchar?
Let me know.
I’m stumped.

Amendment X on June 28, 2008 at 10:49 AM

Here’s a standard answer:

With Obama it will be worse, and his nominees will be confirmed.

Here’s another:

The “people” will have to help the President, and go over the heads of the Congress. Just like the people had to “help” Bush and McCain over immigration reform.

I think the days of leaving the running of the government to professionals (politicians, journalists, lobbyists) are over.

JiangxiDad on June 28, 2008 at 10:56 AM

Will Boumediene and Heller bring conservatives closer to McCain?

It’s not just conservatives. If you can convince the average Democratic voter to take the issues in Boumediene and Heller seriously, they will also be quite dissatisfied with these decisions and perhaps vote for McCain. While I would ordinarily find talking about Heller gutter-level demagoguery, I’m sure that there is a high-minded way to bring the case to people’s attention. If emphasis is kept on the micromanaging of state decisions and not killing the pedophiles, the issue can breached without Democrats accurately sensing a distraction.

thuja on June 28, 2008 at 10:58 AM

knob on June 28, 2008 at 10:30 AM

I think this sums up my feelings.

And let’s remember the newest “swing” vote – Kennedy – was put in under a Republican president (Reagan no less). So there is no guarentee on this particular argument. The argument now is a bit more nuanced.

Will McCain nominate strict originalists or take his opportunity at appointments to “reach across the aisle”? McCain has said he would nominate the right type and he has voted to support those (though he also voted for the lib justices too).

It’s a matter of trust now, and McCain is on shaky ground at best when it comes to that. Will he or won’t he?

I have no love for McCain; far from it. However, I am leaning more towards McCain because of the judgements handed down recently.

There are still many months between now and November for McCain to solidify – one way or the other.

catmman on June 28, 2008 at 11:00 AM

According to Ben Adler, the conservative base has begun to warm to John McCain on the issue of judicial appointments.

Maybe, but he pushes many away with his idiotic, stubborn stances on illegal immigration, global warming, campaign finance, and a host of other past transgressions and other issues. He isn’t just content disagreeing, he’s gotta be a total dick when it comes to disagreeing with conservatives, never does that with the left, though.

doubleplusundead on June 28, 2008 at 11:00 AM

Key problem is that his is just another of the same arguement McCain supporters have been making..

Its not that McCain is good, its that Obama is bad.

In McCain’s constitution its OK for the government to limit Freedom of Speech.

In McCain’s constitution the Feds don’t HAVE to defend our borders.

In McCain’s Constitution the government always gets bigger.

In McCain’s constitution its OK to invade another country WIHTOUT a decleration of war.

And worst off, in McCain’s constitution its now OK for the Feds to hold huge amounts of land unconstitutionaly and hoard its wealth, while the people go broke (land should belong to the states, not the Feds).

Yes, McCain will try to put up Justices in line with HIS intertretation of the Constitution, but that does NOT make him an origionalist.

Romeo13 on June 28, 2008 at 11:01 AM

Isn’t the arbitrariness of the recent Supreme Court rulings mind-boggling? My prediction of future 5-4 SC rulings (not going to say which way they will go): Is “comparable worth” (pay equity) the law of the land? Is universal health care a constitutional right? Are lawyers required for every criminal suspect, even if they don’t want one? Is the sky blue? Nowadays, it seems like anything and everything is grist for the Supreme Court mill. There’s little to no balance anymore among the three branches. The Supreme Court is pretty much on its own.

Paul-Cincy on June 28, 2008 at 11:13 AM

Why do people unquestioningly accept that McCain will nominate the kind of judges who will find his signature legislation unconstitutional?

And if he does, how in the world is he going to get them past the Senate?

misterpeasea on June 28, 2008 at 11:32 AM

misterpeasea on June 28, 2008 at 11:32 AM

So by your reasoning we should surrender and get a Ginsberg instead of trying for the outside shot of a Roberts and maybe getting a Kennedy or O Connor who will exercise some restraint at least.

That makes none too much sense methinks.

I would trade Ginsburg and Stevens for two Kennedys any day.

Squid Shark on June 28, 2008 at 11:50 AM

I think most real conservatives are more worried McCain would nominate religious judges who would allow more fuzzy-headed superstition into our schools and businesses.

alphie on June 28, 2008 at 11:54 AM

What kind of stupid pills has George Will taken?

I think the Heller decision may be the single thing that gets John McCain elected. I would wager that the vast majority of Americans prior to Thursday really did not understand how precarious their fundamental rights are. Now they do, or they will if the Republicans play this properly. So far, I am encouraged.

Barack Obama voted against John Roberts and that vote alone disqualifies him to be President in my opinion. He can’t run away from that vote or shade it or blame it on his staff or some “inartful” statement. His philosophy of judging lays bare his anti-democratic instincts and his fundamental distrust of the people.

rockmom on June 28, 2008 at 12:44 PM

A couple more factors that make McCain look a bit better:

1) The most likely retirees are from the uber-lib 4. If McCain nominates even moderate Justices we are no worse off. If the Dems won’t confirm, he can actually leave the seat empty, giving us 4.5 to 3.5, better than the 4.5-even we have now.

2) Some Obama supporters are already demanding he expand the court to 11 seats. So we could be faced with a 7-4 court stacked hard left.

Six months ago I said you’d have to waterboard me to get me to vote for McCain. By the time November gets here, I won’t even have to cover my nose with both paws.

Rodent on June 28, 2008 at 12:47 PM

Key problem is that his is just another of the same arguement McCain supporters have been making..

Its not that McCain is good, its that Obama is bad.

In McCain’s constitution its OK for the government to limit Freedom of Speech.

In McCain’s constitution the Feds don’t HAVE to defend our borders.

In McCain’s Constitution the government always gets bigger.

In McCain’s constitution its OK to invade another country WIHTOUT a decleration of war.

And worst off, in McCain’s constitution its now OK for the Feds to hold huge amounts of land unconstitutionaly and hoard its wealth, while the people go broke (land should belong to the states, not the Feds).

Yes, McCain will try to put up Justices in line with HIS intertretation of the Constitution, but that does NOT make him an origionalist.

Romeo13 on June 28, 2008 at 11:01 AM

I don’t agree with all of this, but for the sake of argument let’s say it’s all true. The fact is that there is not a “McCain school” of judicial thought. He’s not a lwayer. He’s already said that Fred Thompson will vet his judicial nominees. Any Supreme Court nominee he gets to name will likely be a sitting appellate court judge who was appointed by President Reagan or Bush 41, or possibly a Senator like John Cornyn. We’ll have plenty of time to examine those nominees and voice our opinions. We got Harriet Miers un-nominated and ended up with Samuel Alito, and Alito was confirmed by a Democratic Senate. Let me remind you that Barack Obama voted against Alito and against John Roberts.

The point here is that if Barack Obama is elected, we will get Supreme Court Justice Laurence Tribe, David Boies, or God forbid, Hillary Rodham. Or whoever was that assclown Chief Justice in Florida who tried to give the 2000 election to Al Gore. And that person may replace Anthony Kennedy or even Antonin Scalia. It’s not a given that the first Justice to die or retire will be Stevens or Ginsburg.

rockmom on June 28, 2008 at 12:54 PM

McCain is pretty squirrely so it’s hard to believe anything he says. However, if he were to sit down with Michelle for a long Vent and answers her questions honestly and fully, I might reconsider my position of not voting the top of the ballot.

How about it Michelle, any hope that that power hungry politician, Juan McCain, will sit down for a real interview? I doubt he will.

Zorro on June 28, 2008 at 1:10 PM

Conservatives have legitimate issues with John McCain — but do they want Barack Obama making those appointments?

For me, this is not the question that we should be asking. My issue with McCain is that I don’t believe he feels strongly about certain issues that he talks about and, as a result, I don’t believe he will fight for those issues when President against a rabidly Left and majority Democrat Senate.

John McCain can talk all he wants about certain issues which are dear to the hearts of conservatives in order to fool them into believing he actually cares about those issues (when in fact, in my opinion, he simply is giving lip service to them to earn votes, in the same manner Obama is giving lip service to earn ‘moderate’ and ‘independent’ votes).

But the issue is that we need a leader on these issues, not someone who doesn’t care about the issues, but knows he needs to take a side on them for the sake of earning votes. Once he gets into office, will he continue to fight for these issues against the Democrats? Or will he do what he has done for the past 8 years and simply ‘reach across the aisle’ and make deals with the Democrats, screwing over conservative issues?

I lost respect for John McCain when it came to conservative issues a long time ago. And no bit of lip service on the issues is going to convert me or have me ‘warm up to him’ or ‘bring me closer’ to him. Unless he makes it clear that he will fight for these issues, because be believes wholeheartedly in them.

And the only issue on which it is clear he cares deeply about is Amnesty. As a result, I am voting for him, because he will destroy this country less than Obama, but I am not under the false hope that McCain gives a rats rear end about fighting for issues such as conservative Justices (of the likes of Alito and Roberts). He has been backing down to the Left for years now. I don’t see that changing if he becomes President.

So we conservatives better hope that we can withstand the first two years of his Administration and then get many more conservatives elected in the Senate in 2010.

Michael in MI on June 28, 2008 at 1:13 PM

Just to be clear all 9 justices said it was an individual right. 4 just think rights can be controlled by the government.

mad saint jack on June 28, 2008 at 1:46 PM

FEAR. It’s pure fear of what an Obama USSC would do that drives me to McCain. This alone is abundant reason to vote for him.

The top five issues for me: USSC, energy/economy, taxes, immigration, national security.

petefrt on June 28, 2008 at 3:25 PM

It’s interesting that the men who decide if the average Joe can have a gun are chosen by someone who has 7 guys with guns protecting him all the time and usually doesn’t think anyone else needs a gun. I think what I’m trying to say is that these guys are just a little out of touch. And then they say to me, “Trust me.” And I say, “Why.” And they say, “Next question, please.”

snaggletoothie on June 28, 2008 at 3:33 PM

McCain ought to sign up for an intro macro and micro-economics class.

All he has to do is read two books: Basic Economics and Applied Economics, both by Thomas Sowell.

njcommuter on June 28, 2008 at 4:13 PM

I can’t get over that picture, up front

Emptiness staring into the abyss. Our country will follow the same path. Be careful and be afraid.

Entelechy on June 28, 2008 at 6:50 PM

I don’t know any conservatives that are voting for John Feingold-Kennedy-Hernandez McCain. Though there must be a few, surely.

Ernest on June 29, 2008 at 12:32 PM

but do they want Barack Obama making those appointments?

That’s a trick question, right? :)

irishspy on June 29, 2008 at 3:38 PM

McPander is screwing this country over with regards to immigration. This POS will make no better judical appointments than Ob(s)ama. McPander lost me when he kissed LaRaza’s collect derrierre.

second digit on June 29, 2008 at 8:11 PM