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May. 9 2010 - 11:09 pm | 1,795 views | 0 recommendations | 48 comments

Elena Kagan sends us on the way to a motherless Supreme Court

WASHINGTON - SEPTEMBER 29:  Members of the US ...

Image by Getty Images via Daylife

As Mother’s Day comes to a close, we’re hearing reports that tomorrow morning, President Obama will nominate an individual to be the ninth Supreme Court Justice to replace retiring Justice John Paul Stevens.

If Mike Allen’s reporting for Politico and NBC News’s late breaking report holds up, that nominee will be Elena Kagan, the current Solicitor General of the United States.

There are all manner of issues to raise where Kagan is concerned – from the relevant, such as her minimal record of scholarship and her lack of judicial experience, to the irrelevant such as rumors that she’s a lesbian. Critics also have expressed concern that she’s too conservative-leaning for an Obama appointee. But an issue about Kagan that hasn’t been discussed is one that transcends her – if she is confirmed as a Supreme Court Associate Justice this year, the nation’s top bench will be heading toward a make-up with no mothers sitting on it for the first time since 1981.

It will be great to have 3 women sitting on the nation’s highest court, but it probably won’t last for long. An aging Justice Ruth Bader Ginsburg remains sharp as a tack, but her health is not great, and like Justice Stevens, she might feel the time is right to exit the bench while there is a guarantee that President Obama can replace her with someone who won’t move the Court to the far right.

There are no guarantees that a third Obama justice will be a woman, and even the statistical probability that he won’t appoint another woman given the variety of constituencies that he’ll need to satisfy with his next pick. And that will mean that the two women sitting on the nation’s high court (Associate Justice Sonia Sotomayor being the other) will both be single and childless.

Certainly there is no requirement that every Justice sitting on the court be a parent. But on a powerful body full of fathers, is it too much to ask that we have one mother as a member of the Supreme Court?

I would posit that there are an enormous number of problems in our country that have or will come before the Supreme Court in which motherhood is a critically important detail. From abortion to discrimination in the workplace to future technologies concerning genetic engineering and beyond, women and the decisions they make (or don’t get to make) about becoming mothers to sons and daughters will be burning issues in Supreme Court jurisprudence. Mothers in our society are often forced to make complicated decisions about their lives and those of their children that are not necessarily faced by childless women or even fathers for that matter. And since 1981, the Court has had the benefit of having a mother involved in deliberations on these issues, starting with Justice Sandra Day O’Connor, who was later joined by Ginsburg.

It’s true that Justice Sotomayor and a possible Justice Kagan could sympathize or even (gasp) empathize with mothers. But they’ve never personally been confronted with the choices that being a parent generally, and a mother in particular brings on in our society. Women in America are constantly facing decision points about whether to focus on work, raising a child, or both. Once they become mothers, women have to make decisions along the way about how best to raise their children. And the decisions they make for better or worse often wind up being of broader concern to society as a whole.

To me, if a woman doesn’t have a child, she has only an abstract ability to pass judgment on issues where motherhood is concerned. I say this not out of disrespect for childless women, whose own struggles I would not dare to play down. Rather, I say it out of respect for all the mothers in the world, including my own. Women with the concrete knowledge of the decision-making that comes with motherhood simply know better – ‘A mother knows best’ as we so often say.

General Kagan and Justice Sotomayor are talented women, and their unique experiences, legal knowledge bases, and ability to judge laws are worthy of esteem and fair consideration on their own merits. But I must insist that a Supreme Court without a mother on the bench would be as incomplete as a tricycle with two wheels. Mothers make the world move forward, and they need to have a voice in the arrangement of our society, from the boardroom to the courtroom and beyond.

So while the Solicitor General’s lack of children in no way disqualifies her, it would be a setback if in 2011 or in a year not too far off, we find ourselves with a bench of nine that includes no justices who are mothers. And that’s something that President Obama must consider when he contemplates future Justices beyond Kagan.


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  1. collapse expand

    RE:to the irrelevant such as rumors that she’s a lesbian.

    It’s not irrelevant to the majority of americans who don’t want gay marriage forced upon free america

    • collapse expand

      Ms. Kagans sexual preferences are as irrelevant to her approval or disapproval as her maternal status. To give credibility to one is to give it to both. Neither is a precondition to enlightened interpretation of our nations laws, which I believe is the foremost responsibility SCOTUS is charged with. Nominees should not have THEIR constitutional guarantees infringed upon any more than a plumber, busboy or legal secretary should. Ms. Kagans qualifications to interpret modern legal conundrums should be the focus of the discussion, not her perfectly legal lifestyle choices.

      In response to another comment. See in context »
  2. collapse expand

    You privileged white boy. How dare you be prejudice against a woman without children. This is the most narrow-minded thing I have ever read on Slate. Oh well, I knew you guys would put me back to Drudge sooner or later…

  3. collapse expand

    Mike.. Being engaged to a comedian does not make you a humorist. Grossberger you are not. The one thing your article instructs us there will be no room on the Court for white men for a long long time(unless the dude’s a Satanist).

  4. collapse expand

    The question is, Mother’s Day not withstanding, would it even have occurred to you to write this if the nominee were male? Was it just the presence the nominees uterus which spurred the commentary?

    Which brings me to two (more) questions:

    Do we need a certain percentage of mothers to female non child bearers on the court? Do we need a ratio of fathers to childless men? That sounds like a quota system.

    -Or-

    Are you alluding to the possibility that a mother would be less likely to support Roe v Wade and similar conservative targets?

    Those aside, what is most depressing about this is per your post, in addition to years of education and experience, women now need to have borne children to be *better qualified* to hold a seat on the most powerful court in the land. It goes without saying that this is something impossible to ask of a male judge.

    I don’t want to have to tell my daughter “Honey you can be anything you want when you grow up – as long as you have a baby first. Having a baby will make you a better person and make you more qualified for any occupation you choose.”

    I know it’s your opinion, but I just can’t make any sense out of it. Thank you for leaving out the sexual preference issue.

    • collapse expand

      Your outrageous outrage is duly noted, motive-impugning and all.

      I think the specter of a Supreme Court without mothers is a sad one. I didn’t say a mother is more qualified than a childless woman, although I believe mothers’ voices should be given greater weight on issues relating to parenthood because their concrete knowledge is more valuable than the abstract knowledge of a woman who cares about children but doesn’t have any.

      But my real point can be paralleled with another situation we may soon be facing: I wouldn’t say that a black man is more qualified than a white man to be a US Senator, but if we end up next January with a US Senate that has no black men or women, our Senate will be an insufficient governing body of our country.

      The question in the case of the Senate is why is it so hard for a black man or woman to be elected to represent an entire state in our legislative branch? Only three black senators were ever actually elected, and two of them from Illinois. My concern is that the weight of historical discrimination is keeping black people from being senators.

      Simultaneously, a not-too-far-off Court in which the only women serving are childless seems to be an expression of our country’s messed up approach to gender equality, in which we so often create structures that signal to women that you can be successful in your career, or you can be a mother. Women shouldn’t have to choose between those two poles, and yet so often, they do.

      Motherhood is a critical institution in our world, and for nearly 30 years, it has been represented concretely on the Court. That may not be the case by the time 2012 rolls around, and I think it requires some soul searching among people from all political perspectives in our country.

      In response to another comment. See in context »
      • collapse expand

        I guess asking questions is outrage. I am not outraged – confused and saddened by your take on things, but outrage isn’t quite the word. No need to be snide. I really wasn’t trying to be. I do not have the “messed up approach to gender equality” of which you write. It would be interesting to know your approach to gender equality as you seem to have strong feelings on it.

        I agree that there needs to be a diverse representation and am not arguing that. There is a problem with historical discrimination, but that is a larger problem – the people choose who they want to represent them, right or wrong. If you want to call that widespread racism, fine. It is there and it’s wrong.

        I am having trouble with your statement:

        “I believe mothers’ voices should be given greater weight on issues relating to parenthood because their concrete knowledge is more valuable than the abstract knowledge of a woman who cares about children but doesn’t have any.”

        Does this mean by extension that it would be beneficial if most family court judges were women or that juries on child abuse cases should be selected with a certain number of mothers? This is an idea that once it get started could be extended across race, religion and preference. I don’t think that is your intent.

        I agree that in theory your statement has merit, you might say that women who have children could have a better knowledge of issues of parenthood. However, just understanding the issues and giving birth doesn’t make you a parent. What you are saying is idealistic.

        We are now talking about candidate who should have a stellar academic record, and great work record in public service or private practice. Should there also be a litmus test as to what KIND of parent someone is, their positive parenting skills – not just that they gave birth?

        Being a mother isn’t a guarantee that the woman’s judgment or understanding for OTHER PEOPLES CHILDREN will be better than one who isn’t a mother.

        Please beware of ascribing idealized individual qualities to a group. One mother’s view of children and how to raise a child might be your nightmare. There are some warped views on child rearing out there hiding in the nicest, most educated and successful people you can imagine.

        Motherhood should not be a consideration in choosing a justice. Mother’s certainly shouldn’t be excluded. If the qualified candidate is a mother, great, if not, that’s fine too. Just having a woman with kids up there isn’t going to necessarily help children and families.

        We disagree. We are allowed to do that.

        In response to another comment. See in context »
        • collapse expand

          I mean, you brought up General Kagan’s uterus, so I think I know where the snideness got its start.

          You’re absolutely correct that I’m proposing an ideal here in the notion that I want a mother at the table when important issues related to parenthood arise.

          And while we’re on the issue of messages being sent here, I don’t want anyone telling your daughter that she has to have a baby before anyone can take her seriously. But I also don’t want anyone sending her the opposite message.

          And if you think about the last three women who have been in serious contention for the court – Harriet Miers, Sotomayor, Kagan – were all childless. I think that sends a message.

          In response to another comment. See in context »
          • collapse expand

            This may be a valid point. Are childless women being courted for their lack of certain experiences by very discerning and sophisticated polemicists? Reverse victimized, so to speak. An interesting 3 card Monte type of question.

            syryslysrysly: Micael did no say “Motherhood should … be a consideration in choosing a justice.”. I think his point is that he considers a mothers point of view an important part of balancing the views of SCOTUS. I think, short of felonious behavior, life style choices muddy the clarity necessary for estimating an individuals legal qualifications. Individual qualifications or institutional balance? I don’t think the best nominee will always give us the best of both worlds.

            In response to another comment. See in context »
  5. collapse expand

    It probably sounded worse than it was meant to be.

    Anyhow – your opinion is yours. Don’t agree, but that’s the beauty of America.

    As far as my daughter – she isn’t being schooled to think that having children is bad. Please.

    I seriously think you are reading way too much into this. It’s beginning to sound like how people talk about a gay agenda – which if you have a copy I would love to read.

    Nice chatting with you and good luck.

  6. collapse expand

    Following your lopsided logic, and IMO very narrow-minded thinking, a woman can’t judge a case properly where a man is involved. Afterall, she isn’t a man. She also can’t judge cases properly that involve blind people. Afterall, she’s not blind. She can’t judge cases properly that involve paraplegics because she’s not a paraplegic. Anyway, I think you get my drift.

  7. collapse expand

    While I agree that representation is important in appointed bodies, I don’t think maternal status is all that important.

    In the Supreme Court of Canada, a female justice wrote the decision that de-criminalized abortion – she was childless, and did not identify as feminist (although she drew fairly often from feminist theory). The most unapologetic feminist, and only radical feminist, to sit on the court was a mother. The decision that made the family property regime available to cohabitees – which was helpful to unmarried mothers – was written by a justice who identified as feminist, but was far more conservative, and also childless. There were four women on the court, one of whom was a mother, and one who was the Chief Justice, when they passed a unanimous decision that accepted the logic of father’s rights groups, and paid little attention to the safety concerns of mothers. In the Ontario Court of Appeal, it was a male justice who struck down the social assistance regulations that made it impossible for mothers on welfare to have heterosexual relationships without sacrificing their social assistance benefits.

    Any judge – whether they are a mother, a childless woman, or a man – can make decisions which benefit mothers. And any judge – including judges who are mothers – can make decisions that deny the legitimacy of mothers’ interests.

    • collapse expand

      The decision that made the family property regime available to cohabitees

      Correction: The original decision that made division of property available to cohabitees was written by a male judge. The female justice in question wrote a decision that made it available to all cohabitees, not just those who invest extraordinary time and money into their partner’s property. Creating an assumption that the property will be equally divided, as is the case with the legislation available to married couples.

      In response to another comment. See in context »
    • collapse expand

      You’re absolutely right that mothers on a court are no guarantee that it will lead to a favored political decision (whatever politics you favor). On the other hand, I’d still prefer that at least one mother be weighing in on our Supreme Court.

      In response to another comment. See in context »
  8. collapse expand

    Obama’s right to look for justices who can empathize. It is impossible for a 9-member appointed body to be adequately representative. The important thing is that the justices have a judicial philosophy that allows them to fully empathize with and understand the mothers – and other individuals – who come before the court.

  9. collapse expand

    I think your point would be better taken if we had a Supreme Court that was more representative in its makeup to begin with. Elena Kagan, if confirmed, will only be the fourth woman to sit on the Supreme Court ever.

    If she were to become the fouth woman currently sitting on a court that had seen many other women before the current justices were appointed, then it would indeed be odd and troubling if none of those women had children. If nothing else, it would say troubling things about the obstacles women with children faced in reaching such heights.

    But as the fourth woman ever, when she’s likely to find herself one of only two women on the court? When the first two women to sit on the court were mothers? Under these circumstances, singling out “motherhood” as an experience the court lacks seems like a bit of a smokescreen, a kneejerk objection or a double standard.

    I mean, you’d be right in answering somebody who asks if you’d scrutinize a man’s parental standard by pointing out that there would still be plenty of fathers on the court… but that’s only because there are plenty of -men-, period.

    The problem isn’t a lack of mothers. The problem is a lack of representation for women. If the gender balance is redressed, then the motherhood “issue” will resolve itself. Trying to resolve it while women are still an underrepresented minority on the court is just raising an additional barrier for women to have to hurdle over.

    • collapse expand

      I’m not sure what I’m creating a smokescreen for, especially when I state forthrightly that having no children does not disqualify General Kagan for the court.

      I’m certainly in favor of a more gender-balanced court. I think interest groups pushing and pulling on the president will need to make a determined effort to install a woman to replace Justice Ginsburg when she likely exits the court sometime next year. There are no guarantees that he will.

      In response to another comment. See in context »
      • collapse expand

        It’s a smokescreen for sexism, pure and simple.

        Please understand I’m not talking about your intentions or motivations, but the institution of sexism (see also: Patriarchy), which will seize on any argument or obstacle it can to throw in the path of a woman like Elena Kagan.

        Imagine that you had to contend with an entrenched opposition like that in order to keep putting your writing online. If I came along and said, “I’m not saying that Michael Roston shouldn’t be allowed to blog, but we should talk about the implications of [some characteristic you have] and its presence on the internet.”, how reassuring would you find my forthright disclaimer? How much difference would my good intentions make to you when your hypothetical opponents seized on my reasonable and even-tempered words to give their vendettas cover?

        One need not intend to defend the status quo to reinforce it… if it took that much effort to prop something up, it wouldn’t be the status quo. You might not have said “I think I will send up a great big cloud of smoke to obscure other issues around Elena Kagan’s nomination in order to hurt women.”, but… you made this cloud of smoke, it is obscuring things, and it does so to the detriment of women.

        You raised this issue to what end? Not to disqualify Elena Kagan, you say, but you’re introducing/propping up an issue that can only be held against her.

        You’re fashioning a stick into a spear, leaving it laying around where anyone can pick it up and hurl it at her, and then saying “But I don’t expect anyone to use it.”

        In response to another comment. See in context »
        • collapse expand

          By calling me a sexist, you’re the spear-chucker. You’re impugning my motives at every turn and then saying you’re not questioning my motives. What kind of dishonest smoke screen is that? Especially when I articulated clearly and up front that my concern transcends Kagan and requires us to look out past the particular debate over her confirmation to the Supreme Court we’ll be looking at in 2011 or 2012.

          Here’s my motive, plain and up front: our approach to gender equity in this country is to tell women they can choose between motherhood and their careers. I think that’s the most sexist thing of all, and it’s bad for both men and women. If Justice Ginsburg retires next year and is not replaced by a woman who has given birth to and raised children, our political system will be bellowing loudly that the warped American approach to gender equity in which men can leave the child-rearing to women unless the women don’t want to have children and then they can work is acceptable.

          In response to another comment. See in context »
          • collapse expand

            There’s no such thing as “a sexist”, just people who do sexist stuff. If you point out that someone is standing on your foot, are you implying that they’re doing so on purpose? Don’t take it so personally.

            In response to another comment. See in context »
  10. collapse expand

    The first two female Supremes had children. The next two do not. The quality of a justice’s decision making is unlikely to be predictably skewed based solely on his or her parent status (except for Scalia maybe). Motherless women may overvalue parenting issues and justices who are also mothers may downplay their status to deflect perceived bias against them (the weakness thing that mothers sometimes get). I’m a mother but I have no fear that “motherless” women will somehow skirt my constitutional rights–because I can’t think of a single good reason why they would.

  11. collapse expand

    You are a bigot and, like most people of that ilk, intellectually dishonest.

    You say that Kagan’s non-mom status doesn’t disqualify her from the court, yet lament that her nomination brings us closer to a motherless Court.

    Did you raise that issue when Sandra Day O’Connor was replaced with Sam Alito? Did you raise it when John Roberts replaced Rehnquist?

    Did you wait until Ginsburg left and the Court was truly mother-less?

    No, because this really is about Kagan’s status as much as anything. You are discriminating against her because she doesn’t fit your image of what a woman should be.

    Your arguments to the contrary are belied by your timing. You are a bigot. You are a bigot. You are a bigot.

    • collapse expand

      I’m not a bigot Molly, but it’s pretty clear that you’re a typically ill-tempered semi-anonymous Internet commenter who substitutes belligerent insults for cogent arguments. Are you one of these ‘child-free’ people who wants to ’stab me in the balls’ because of the phantom discrimination you imagine against people in America who don’t want to have kids?

      What’s really intellectually dishonest is people like you showing up and hurling invective at me in order to shout down a fair question about the terrible choice our society gives to women – succeed at your job, or become a mother. It’s a real problem for men and women alike, and refusing to talk about it because of an imagined diminishing of the great qualities of many childless women does nothing to address gender inequities in our society. It just covers them up. Who’s the bigot now?

      In response to another comment. See in context »
    • collapse expand

      Are you saying that he’s a bigot?

      In response to another comment. See in context »
    • collapse expand

      It’s not worth the effort, Molly. As demonstrated by his response to Alexandra Erin, no matter how civilly you point out that maybe he has some unexaminded prejudices, Roston will deny it.

      I’ve noticed that that’s common among dudes who blog at T/S. You say, “Hey, do you realize that what you’ve written has sexist/racist/etc. implications? And is the opposite of helpful to people who have to deal with that shit?” and they get all, “Gasp! How dare you! YOU are the bigoted one for suggesting such a thing!” and are just really childishly defensive.

      In response to another comment. See in context »
      • collapse expand

        I really don’t understand where you’re coming from on this point. Up above, you raised a perfectly good point based on proffered empirical evidence. It didn’t require you to call me a sexist, a bigot, or any of the other things that come from people falsely accusing me of saying Elena Kagan shouldn’t be on the Supreme Court because she doesn’t have children. Responding to it didn’t require me to call you a sexist, either. In fact, I granted your point and said that in spite of it being true, I didn’t think it disproved my argument about the social value of mothers reaching the highest positions of power in our society. In fact, for Alexandra above, I said I didn’t understand her argument before she came right out and called me a sexist for being pro-mom in addition to being pro-woman.

        What’s worse, the people who are making these claims seem to be coming from or in agreement with the psychotic message boards that have wished violence upon me and used all means of schoolyard invective to tear me down. Why? Because they’ve invented this phantasm of discrimination that supposedly exists against women in our world who don’t choose to have children. Seriously, the people who accuse me of having a ‘natalist agenda’ (an actual blog post) for simply saying that women shouldn’t have to choose between motherhood and a successful career seem to be the ones who also lean right into things like ’sexist’ and ‘bigot’ for saying that our Supreme Court appears to exemplify real problems with gender inequity in our society.

        When someone hops right into calling me a sexist (unlike your earlier comment, which was totally reasonable, honest, and sincere), I think they’re trying to short-circuit a discussion.

        But hey, if you can’t deal with this dude on True/Slant not liking being called a sexist when he’s pleading for a better American approach to gender equity, then please, be like patty up above and head on over to the Drudge Report where I’m sure you’ll get great news content.

        In response to another comment. See in context »
        • collapse expand

          This has nothing to do with my previous point. I just sympathize with Molly and Alexandra.

          While I’m sure you have the best intentions, but that doesn’t mean your article can’t be problematic as well. While you mention women having to choose between career and family, that was not the focus of your article; it was about representation. You didn’t write about the problems female professionals face, and the entire piece is set up like, “I’m not saying there’s anything wrong with Kagan’s nomination, but…” followed by what’s wrong with Kagan’s nomination. And of course the premise is essentializing.

          Caring about equality does not mean that you will never do anything with sexist implications, and it does not make you immune to being called out when it happens.

          I find it amusing, in a pathetic kind of way, how many liberal guys, including a few on T/S, seem to be very pleased with how enlightened and educated they are. But then when a commenter points out that they, as white guys, are not the experts on what is sexist, or racist, or whatever, they get all huffy and offended at the suggestion that they aren’t the shining example of enlightenment they thinki they are. When, if they were sincere about being allies against discrimination, they would take the voices of people who have actually faced discrimination a lot more seriously.

          And yeah, childless women do face discrimination in our society. As do mothers. It’s one of those fun double-binds that women get to deal with.

          In response to another comment. See in context »
          • collapse expand

            Sorry but you’re just wrong – dead wrong. I’m not saying there’s anything wrong with Kagan’s nomination. I’m saying there’s something very wrong with a motherless Supreme Court. You saying that my pro-mom position is sexist is the kind of desperate grasping that creates its own double-bind – i.e., if you speak up in favor of something, apparently you must be speaking against something else. Sounds like the kind of zero-sum logic that various feminist movements have tried to fight against, i.e. the argument that being pro-woman doesn’t mean that you’re anti-man. Being pro-mom doesn’t de facto make me anti-Kagan.

            And you’re damn right – I feel pretty good about being pro-mom. I also feel pretty good about not being anti-woman in general. I never claimed to be an expert in racism or sexism, and if that means I can’t speak up on behalf of something I care about and not take umbrage at being called a sexist, than I think it shows that the women who are making these statements, like you, are only replacing patriarchy with a goal-tending matriarchy of their own.

            In response to another comment. See in context »
          • collapse expand

            Being pro-mom doesn’t de facto make me anti-Kagan.

            Obviously. But the way you express that is problematic.

            …and if that means I can’t speak up on behalf of something I care about and not take umbrage at being called a sexist…

            How much you care about equality is not the issue. The issue is whether or not what you’re saying actually helps. You can be in favour of equality and still be informed by sexist preconceptions, or uncritically accept sexist cultural narratives.

            In response to another comment. See in context »
        • collapse expand

          You seem to be in a lose/lose situation here, and you have my sympathy–on one side, you have people reading bias into your simple observations; on the other side, you have people vastly over-analyzing things.

          This is what the Internet has done to communication, I guess.

          In response to another comment. See in context »
      • collapse expand

        I love your brand of mindset–it’s hilarious when it’s not scary. Either someone concedes to your accusation(s) or that person is in denial. Brilliant.

        In response to another comment. See in context »
  12. collapse expand

    Motherless? Not as long as Alito, Roberts, Scalia, and Thomas are on the court. Real mothers, all.

  13. collapse expand

    I get it–you simply don’t like people named Elena. No, wait, I’ve got it–you hate the initials E.K., um… um… because they remind you of BK, because you once had a bad experience at Burger King.

    You probably hate the Supreme Court, too. Why do you hate the Supreme Court? And, by extension, schoolchildren, the initials for whom coincide with the initials for the Supreme Court (S.C.). You probably despise South Carolina, too. And Sid Caesar.

    What did Sid ever do to you? Have you no morality??

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    I'm waiting for the day when I can get the news directly into my brain. Until then, I'll be lit up by the electric glow of screens, chasing the latest breaking like the hopeless news junkie I am. Ever since the Encyclopaedia Britannica tried to launch a web portal ten years ago, I've seen many ends of the online news spectrum, from my time as a political news reporter for both RawStory.com and the Huffington Post to the better part of a year I spent running the late New York Sun's website. There have been a lot of other stops in between. Now I am your homepage editorial overlord. But I haven't let it go to my head. Yet.

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