Public consultation: judicial qualification requirements

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Claude Desmoulins":mdl2aosy]Ash,

Throughout the development of the judiciary , you were adamant that no one from outside the judiciary have influence on how a judge might decide a case. Why isn't there just as much danger of such influence from within the judiciary?

What if, rather than evaluating a candidates reasoning abilities and general temperament, the judiciary uses the hypotheticals to only qualify applicants who see the law the same way as the present judge(s)? I believe that that would be equally damaging to judicial independence.[/quote:mdl2aosy]

I have dealt with this point in my response to Beathan above.

[quote:mdl2aosy]My question to you is, "What is it about the fitness for judicial service that can only be determined by the presentation of and response to hypothetical cases?" Surely there are other things that can address temperament, reasoning, and writing ability.[/quote:mdl2aosy]

The assessment by answer to hypothetical questions of exactly how a potential judge would approach discharging her or his judicial functions is uniquely able to assess the ability of candidates for judicial office to pull together all of the individual skills that are required in a judge, and do the very thing that he or she is being considered for qualification to do. Any other method of assessment would be most oblique: any other profession qualifies its applicants for qualification on the basis of an assessment of their ability to do the exact thing that they are being qualified to do, and the judiciary is no different in the need to assess such skills effectively. We should also remember that we, unlike the High Court in England (for example), have no ability to assess the candidate's performance and abilities over decades of glittering legal practice.

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Post by Beathan »

Ashcroft wrote [quote:3adi44vo]The assessment by answer to hypothetical questions of exactly how a potential judge would approach discharging her or his judicial functions is uniquely able to assess the ability of candidates for judicial office to pull together all of the individual skills that are required in a judge, and do the very thing that he or she is being considered for qualification to do. Any other method of assessment would be most oblique: any other profession qualifies its applicants for qualification on the basis of an assessment of their ability to do the exact thing that they are being qualified to do, and the judiciary is no different in the need to assess such skills effectively. We should also remember that we, unlike the High Court in England (for example), have no ability to assess the candidate's performance and abilities over decades of glittering legal practice.
[/quote:3adi44vo]

But why can't this oblique analysis be fully discharged by asking oblique questions, rather than actual hypotheticals. If what we want is good reasoning, why can't we ask questions that call for an application of reasoning in general. If we want to see if a person can research legal issues, why not ask research, rather than analytical hypothetical, questions. Again, I do not see (despite your inability to see) how hypothetical questioning can do anything but prejudge cases by asking judges to state in abstract terms judgements that they may well be asked to make in real cases they hear later. This should cause anyone committed to unprejudiced judges to have qualms -- even without reference to American legal ethics. However, we should look to American legal ethics because this problem has been clearly, specifically and elaborately addressed in that system. If Ashcroft's inability to see this ethical issue is indicative of the evaluation of the issue in British judicial ethics, that difference between British and American judicial ethics alone gives us good reason to privilege American judicial ethics, at least on this issue.

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Post by Ashcroft Burnham »

[quote="Beathan":3b0z7zwi]But why can't this oblique analysis be fully discharged by asking oblique questions, rather than actual hypotheticals.[/quote:3b0z7zwi]

The point is that using hypotheticals is a non-oblique method; not using hypotheticals is oblique.

[quote:3b0z7zwi]If what we want is good reasoning, why can't we ask questions that call for an application of reasoning in general. If we want to see if a person can research legal issues, why not ask research, rather than analytical hypothetical, questions.[/quote:3b0z7zwi]

Because we need not [i:3b0z7zwi]just[/i:3b0z7zwi] good reasoning and research (etc.), but the ability to pull all the skills together in the context of delivering judicial judgments, drafting orders, etc..

[quote:3b0z7zwi]Again, I do not see (despite your inability to see) how hypothetical questioning can do anything but prejudge cases by asking judges to state in abstract terms judgements that they may well be asked to make in real cases they hear later. This should cause anyone committed to unprejudiced judges to have qualms -- even without reference to American legal ethics. However, we should look to American legal ethics because this problem has been clearly, specifically and elaborately addressed in that system. If Ashcroft's inability to see this ethical issue is indicative of the evaluation of the issue in British judicial ethics, that difference between British and American judicial ethics alone gives us good reason to privilege American judicial ethics, at least on this issue.[/quote:3b0z7zwi]

I do not think that it is fair to summarise my position as merely being "unable to see" the basis for your concerns when I have set out in some detail reasoning which explains why I do not agree that the things about which you are concerned are good causes for conern (the point that judges often have to make deicisions on limited information, and that there is no substantive difference between a judge making a decision on limited information in a case and then having to decide a subsequent case on similar facts, and the point that many of the points that you make apply only to decisions of fact, and no questions requiring decisions of fact are in the questionairre).

The issue here is only whether the concerns are well-founded in substance, not whether they represent the judicial ethical norms of any given first-life jurisdiction.

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Post by Beathan »

In response to my discussion on the factual poverty of hypothetical questions, Ashcroft responds [quote:282o004l]I have already explained that this does not make sense, because very often real life cases are made on the basis of limited information, as in cases decided on written representation or appeals. Many of the factors that you are citing (you mentioned assessing the credibility of evidence several times, for instance) are relevant only to judgments about facts, yet none of the hypothetical questions ask for sample judgments on disputesd questions of fact. [/quote:282o004l]

This observation is very troubling. On one hand, every case is about a consideration of facts as presented to the tribunal and therefore is limited. Every decision must be made on less than complete and less than perfect facts. However, it is also true that trial courts can, should be, and are routinely reversed by courts of appeals when they decide cases prematurely or on ambiguous facts. The problem with hypothetical questions is that they ask potential judges to make judgment-like decisions based on facts which are so impoverished that they would not provide a sufficient basis for the judgment. This is practicing bad habits, and should be avoided.

Second, it is simply a mistake of legal reasoning to contend that the problems with hypothetical questions do not appear because, as a rule of answering hypotheticals, we take the facts as presented as if they are proven and, therefore, do not need to evaluate the facts in light of unprovided cirumstance information or credibility issues. As I have argued elsewhere, an answer to a hypothetical question will necessarily prejudge cases the judge may actually hear as a judge. I personally believe that there is no principle of law that is so clear that the outcome of a case is foreordained without reference to the factual circumstances of the case. Even questions which seem to have perfectly clear and unavoidable answers in the abstract can, when tied to difficult facts or circumstances, not only appear less clear, but can require different answers.

The problem with asking hypothetical questions in a judicial qualificiation process is that the judge has provided abstract answers to abstract questions that might appear relevantly indistinguishable from real issues raised in later cases, but raised unders circumstances that require a different answer than the one provided in the judicial qualification process. If the judge has provided a relevantly similar answer in the abstract, the judge will be forced to either be inconsistent or to be wrong in rendering the later decision in a real case. If the judge makes the right decision under the circumstances, the judge will be open to criticism that their reasoning is inconsistent (and therefore inferior) because it diverges from the abstract answer given during judicial qualification. The judge may even be accused of dishonesty -- of having lied during judicial qualification. These accusations will undermine the judicial system -- attacking the very essence of the force of judicial action, the integrity and intelligence of the judge. If, to avoid this criticism, the judge merely reiterates the decision that he made in the abstract during judicial qualification, he is committing twocardinal sins of judging -- 1. he has prejudged the case without hearing the facts and has made a decision without reference to the facts and 2. he has made a wrong decision, which he knows to be a wrong decision, out of institutional expedience and moral cowardice.

These problems are unnecessary and be completely avoided by simply avoiding hypothetical questions.

Ashcroft further writes [quote:282o004l]That would only be a relevant criticism if (1) the hypothetical questions required a response on a point of substantial public controversy; and (2) the response was assessed on the basis of the similarity of the respondent's answer to the beliefs of the assessor. I have taken great pains in writing the questionairre to avoid questions on any matter of political controversy (instead, focussing on rather esoteric examples about the interaction between public and private law, for instance), and to choose questions the answers to which are either indisputably right or wrong (such as where the constitution provides a conclusive and unequivocal answer), or where I have no opinion either way as to what the answer should be.
[/quote:282o004l]

This is very cold comfort. First, a hypothetical question which suggests an answer that is perfectly clear and indisputable to Ashcroft might indicate two different things. First, it might indicate that the answer is actually clear and indisputable (although I doubt there is any such answer in law). Second, it might indicate that the question and answer are suggested by a deep, abiding, unconscious, unscrutinized, and immoveable prejudice in Ashcroft about the issue. In other words, people can be utterly convinced of a proposition on two bases: (1) the eminently reasonableness of the propisiton or (2) the unreasonable and unreasoning prejudice of the person believing the proposition. Further, the actions of people are indistinguishable regardless of the basis of their action -- reason or faith.

Second, even if Ashcroft is completely honest and completely self-aware and completely correct in his denial of bias, an institution that relies on such honesty, self-knowledge and integrity is on very dangerous and uneasy footing. We cannot know the internal workings of the people we charge with institutional power. Therefore, we must be careful to set up institutional processes that do not rely on the moral rightnessof the administrators. An institution that relies on the goodness of its administrators is inherently dangerous because it can be abused, without ready remedy, by people with bad motives. For this reason, I think such institutions are not only dangerous, they are illegitimate.

I have all the faith in the world that Ashcroft is a good man and has the interests of CDS at heart. However, this is not my analysis. I ask, what would happen if Hitler, and not Ashcroft, were evaluating my answers to these questions. If the answer is, "I would be disqualified for improper reasons without an ability to correct that evaluation" -- then the evaluation system is fundamentally flawed.

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Post by Beathan »

Ashcroft writes [quote:1ngod6kk]Because we need not just good reasoning and research (etc.), but the ability to pull all the skills together in the context of delivering judicial judgments, drafting orders, etc.. [/quote:1ngod6kk]

I think this is an unwarranted assertion. What specific glue beyond ability to reason, ability to discover and understand the law, and ability to communicate the outcome of reasoning is needed? In other words, if a person can think about things in general and can understand law as something to think about and can communicate her thoughts, what more is needed. Personally, I can't think of anything more that is needed, and I believe that legal hypotheticals are unnecessary to ferret out each of these skills.

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Post by Justice Soothsayer »

[quote="Beathan":31z8k527]...I ask, what would happen if Hitler, and not Ashcroft, were evaluating my answers to these questions. If the answer is, "I would be disqualified for improper reasons without an ability to correct that evaluation" -- then the evaluation system is fundamentally flawed.
[/quote:31z8k527]

This discussion has now proven Godwin's Law
http://en.wikipedia.org/wiki/Godwin's_law

[quote="Mike Godwin":31z8k527]
"As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one." [/quote:31z8k527]

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Post by Beathan »

Justice wrote [quote:uwir1cd7]This discussion has now proven Godwin's Law
[/quote:uwir1cd7]

LOL -- MeaCulpa; Mea Culpa; Mea Maxima Culpa.

I'm sorry -- and I know I broke the primary, cardinal rule I teach H.S. debaters (I volunteer as a assistant debate coach and judge) -- never, under any circumstances, ever refer to Hitler.

But he is such a nice shorthand for someone really, really bad -- and even for such a person who does not necessarily seem so at the outset (although this is certainly debatable). Usually, rather than Hitler, I refer to Attila the Hun or Genghis Khan -- but those guys were not morally corrupt enough for the context here. Perhaps I should have said "The Antichrist" -- but that would have merely proven the evangelical equivalent of Godwin's Law; or "Alcibiades" -- but I don't know how many people would follow that.

I thought this might be a time to follow my second cardinal rule -- never, ever say "never, ever." Perhaps I was over-hasty.

That said, I think the point is sound. We should test the legitimacy of an institution by asking, "how would it behave if in the hands of a thoroughly corrupt or evil person." If our institutions pass this test, we can sleep at night. If not, we had best keep one eye open.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":tcxmvmj1][quote="Beathan":tcxmvmj1]...I ask, what would happen if Hitler, and not Ashcroft, were evaluating my answers to these questions. If the answer is, "I would be disqualified for improper reasons without an ability to correct that evaluation" -- then the evaluation system is fundamentally flawed.
[/quote:tcxmvmj1]

This discussion has now proven Godwin's Law
http://en.wikipedia.org/wiki/Godwin's_law

[quote="Mike Godwin":tcxmvmj1]
"As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one." [/quote:tcxmvmj1][/quote:tcxmvmj1]

ROTFL!

See also [url=http://www.dilbert.com/comics/dilbert/a ... l:tcxmvmj1]here[/url:tcxmvmj1].

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Post by Fernando Book »

[quote="Beathan":2hjyuypa]But he [Hitler] is such a nice shorthand for someone really, really bad -- and even for such a person who does not necessarily seem so at the outset (although this is certainly debatable). (...) That said, I think the point is sound. We should test the legitimacy of an institution by asking, "how would it behave if in the hands of a thoroughly corrupt or evil person." If our institutions pass this test, we can sleep at night. If not, we had best keep one eye open.
[/quote:2hjyuypa]
In the late nineties I was in the workers committe to negotiate our enterprise collective bargaining agreement. Both the management and we said of every clause (it was a very complicated agreement): "What if Slobodan Milosevic has to use this clause?". I agree with Beathan when he says it'ss a good test. [/quote]

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Post by Beathan »

Fernando writes [quote:467i5r4x]In the late nineties I was in the workers committe to negotiate our enterprise collective bargaining agreement. Both the management and we said of every clause (it was a very complicated agreement): "What if Slobodan Milosevic has to use this clause?". I agree with Beathan when he says it'ss a good test.[/quote:467i5r4x]

Ah -- yes, Slobodan Milosevic -- much better example. I will add him into my lexicon and once again strike out Hitler.

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Post by Beathan »

Regretably, and on further reflection, I have decided not to apply for a judicial post given the current qualification procedure. My reasons for this decision are stated in my earlier posts, but primarily include:

1. my inability to answer approximately half the questions asked in the application process under principles of judicial ethics I hold;

2. my feeling that the remaining questions are either too vague to be appropriately answered or require a work burden out of all proportion to the requirements of the office as it is constituted now and into the foreseeable future;

3. my deep skepticism that the qualification process even approaches the critical characteristics of the office.

I hope that a new and more appropriate qualification process will be implemented in the future. Until then, I will remain, with regret, in my role of gadfly.

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Post by Publius Crabgrass »

[quote="Beathan":1l34asuj]I hope that a new and more appropriate qualification process will be implemented in the future. Until then, I will remain, with regret, in my role of gadfly.
[/quote:1l34asuj]

Sorry, but before you can fill the official role of gadfly you must first become qualified by the CDS Gadfly Registration Internet Protocol Examination (GRIPE) Board. The examination process includes the requirement of essays of no less than 500 words on (a) [url=http://en.wikipedia.org/wiki/Muckraking:1l34asuj]muckraking,[/url:1l34asuj] (b) [url=http://en.wikipedia.org/wiki/Lincoln_Steffens:1l34asuj]Lincoln Steffens[/url:1l34asuj], (c) the transformation of [url=http://www.consortiumnews.com/2005/111805.html:1l34asuj]Bob Woodward's view[/url:1l34asuj]on Iraq, and (d) the role of blogging in elections for the [url=http://www.corporateblogging.info/2005/ ... p:1l34asuj]European Parliament[/url:1l34asuj]. Essays that use [url=http://www.koalanet.com.au/australian-s ... l:1l34asuj]Australian expressions[/url:1l34asuj](e.g. g'day) will be disqualified for being insufficiently culturally anonymous. Unfortunately, the GRIPE Board currently lacks a quoroum, so it will be some time before your appplication can be processed.

Then again, maybe not.

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Post by Ashcroft Burnham »

[quote="Beathan":2od4mbzp]1. my inability to answer approximately half the questions asked in the application process under principles of judicial ethics I hold[/quote:2od4mbzp]

I will address this presently in response to your latest response, but I have been focussing on judicial procedure of late.

[quote:2od4mbzp] 2. my feeling that the remaining questions are either too vague to be appropriately answered or require a work burden out of all proportion to the requirements of the office as it is constituted now and into the foreseeable future[/quote:2od4mbzp]

I am very concerned that you consider this to be so: upon what basis do you measure what you think that the requirements of judicial office in the next year or so are likely to be? What is your response to my explanation of why I do not believe to be so, and about why strict proportionality between the test required for appointment and the work in practice is in any event not by itself a decicive factor, given the [i:2od4mbzp]importance[/i:2od4mbzp] of the work that judges must do, and the (necessary) extent of a judge's powers.

I also find it odd and somewhat unhelpful that your criticism that my questions are too vague is itself extremely vague: why do you think that any of the questions are "vague"? Which of the questions do you think are vague, and what precisely do you think is vague about them? Can you give examples of questions on the same topics that are not vague? What is it about the particular kind of vagueness that you describe render them incapable of appropriate answer?

[quote:2od4mbzp]3. my deep skepticism that the qualification process even approaches the critical characteristics of the office.[/quote:2od4mbzp]

Again, I have replied to this, and yet you do not seem to have addressed any of the issues that I raised in my reply. Upon what basis do you contend that, in respect of any of the qualification requirements listed in the eponymous document, a person who meets that requirement would not be a better judge, all things being equal, than one who does not?

It is particularly important to note the detailed and careful responses that I made above in relation to the split process of qualifications and appointments, whereby I noted that the qualification requirement was to ensure that the existing judiciary could ensure that all of those appointed to judicial office had the requisite judicial skill. The way that the system is designed, the qualification process is not designed to be an exhaustive test for overall suitability for office, any more than it necessarily follows that any person who passes the Bar would make a good lawyer. The assessment of the skills that you claim are important but unassessed in the qualification process is, as I have explained now more than once before, undertaken by the Public Judiciary Scrutiny Panel (for which, if you do not want to apply for judicial office, you will now be free to stand): it simply does not make any sense to criticise the qualification process for being incomplete, when it was never designed to be complete.

Furthermore, it must be noted that my preference always was for an application process that was not principally paper-based, but was based on elevating people who had been stalwart advocates before the court for many months, and who had additionally sat with judges in real cases, and delivered shadow judgments thereon, and been assessed on that basis, would be appointed (the original scheme of the Judiciary Act was to give the existing judiciary the power to appoint judges in a single stage proces - nonetheless, this process could apply to qualificaiton also). It was because the Chair of the Judiciary Commission raised the quota of judges so soon after I had been appointed that necessitated a means of appointment that, while no less thorough, was far faster, which was why it was necessary to have a paper-based system. The requirement to qualify candidates in accordance with published qualification requirements (introduced into the then Judiciary Bill at the behest of the legislature; t hat was not in my original draft) also lends itself more to a paper based test than the more practical process that I had originally envisaged.

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Post by Ashcroft Burnham »

[quote="Beathan":3dvtm2np]This observation is very troubling. On one hand, every case is about a consideration of facts as presented to the tribunal and therefore is limited. Every decision must be made on less than complete and less than perfect facts. However, it is also true that trial courts can, should be, and are routinely reversed by courts of appeals when they decide cases prematurely or on ambiguous facts. The problem with hypothetical questions is that they ask potential judges to make judgment-like decisions based on facts which are so impoverished that they would not provide a sufficient basis for the judgment. This is practicing bad habits, and should be avoided.[/quote:3dvtm2np]

I do not agree that the factual scenarios presented provide insufficient basis for a judgment. It is to be noted that, where there is no dispute of fact, cases will be decided by reference to the propositions of fact in written notices submitted to the court by the parties (what are called pleadings or statements of case in some first-life common-law jurisdictions). Depending on the parties, these may be very brief. Appeal courts may have to decide a case on a point of law on the factual basis set out in a judgment of a court below, which itself may be a condensed version of what the judge in the court below considered the relevant points. There is no reason to suppose that it will never occur that such facts will be as brief or more brief than those set out in the example questions in the questionairre.

[quote:3dvtm2np]Second, it is simply a mistake of legal reasoning to contend that the problems with hypothetical questions do not appear because, as a rule of answering hypotheticals, we take the facts as presented as if they are proven and, therefore, do not need to evaluate the facts in light of unprovided cirumstance information or credibility issues. As I have argued elsewhere, an answer to a hypothetical question will necessarily prejudge cases the judge may actually hear as a judge. [/quote:3dvtm2np]

As I have already explained, your assertion that there is any "necessary" prejudice is unfounded as a matter of fact. I also find it odd that you repeatedly raise the issue of credibility: a very substantial number of cases in real-life involve no disputes of credibility, and our courts are likely to be no different. Issues relating to credibility are therefore conceptually incapable of being relevant to a series of questions all of which make plain that the candidate is not being asked to decide any credibility issues. It would be wholly wrong in law for a judge to question anybody's credibility where that credibility is not formally in issue.

[quote:3dvtm2np]I personally believe that there is no principle of law that is so clear that the outcome of a case is foreordained without reference to the factual circumstances of the case. Even questions which seem to have perfectly clear and unavoidable answers in the abstract can, when tied to difficult facts or circumstances, not only appear less clear, but can require different answers.[/quote:3dvtm2np]

I disagree: there is a reason that headnotes have very succinct recitation of the facts of the reported cases. Of the seminal cases in legal history, what more facts do we need than that, for example, a life insurance company accidentally made a payment to a widow when it had no legal duty to do so because the policy had lapsed, or that a young lady took fright, and subsequently suffered nervous shock, in consequence of finding a decomposing snail concealed at the bottom of a bottle of ginger beer much of which she had happily consumed, and that had been bought for her by somebody else and given to her as a gift, or that two parties to a contract for the sale of cotton currently aboard H. M. S. Peerless each genuinely believed that the contract was about a [i:3dvtm2np]different[/i:3dvtm2np] H. M. S. Peerless, each of which was carrying cotton, one of which was scheduled to arrive in the same port a good deal earlier than the other, such a difference making a material difference to the value of the contract?

[quote:3dvtm2np]The problem with asking hypothetical questions in a judicial qualificiation process is that the judge has provided abstract answers to abstract questions that might appear relevantly indistinguishable from real issues raised in later cases, but raised unders circumstances that require a different answer than the one provided in the judicial qualificatin process. If the judge has provided a relevantly similar answer in the abstract, the judge will be forced to either be inconsistent or to be wrong in rendering the later decision in a real case. If the judge makes the right decision under the circumstances, the judge will be open to criticism that their reasoning is inconsistent (and therefore inferior) because it diverges from the abstract answer given during judicial qualification. The judge may even be accused of dishonesty -- of having lied during judicial qualification. These accusations will undermine the judicial system -- attacking the very essence of the force of judicial action, the integrity and intelligence of the judge. If, to avoid this criticism, the judge merely reiterates the decision that he made in the abstract during judicial qualification, he is committing twocardinal sins of judging -- 1. he has prejudged the case without hearing the facts and has made a decision without reference to the facts and 2. he has made a wrong decision, which he knows to be a wrong decision, out of institutional expedience and moral cowardice.[/quote:3dvtm2np]

As I have already explained, this does not make sense: either the case at hand genuinely is comparable, or there are good reasons for it being not comparable, and those reasons can be given in judgment. As I have also explained now a number of times, there is no difference between deciding a hypothetical point (or real case) on the basis of very limited information, and then coming on to decide a case where there is more information available differely because some of the additional information makes a difference to the outcome than deciding one case with detailed information pointing to one outcome, and another case with detailed information pointing to another outcome, when an approximate outline of the facts of both is the same. You have yet to provide clear reasoning for the distinction that you contend between deciding one real case (whether on limited information or otherwise) and another, and answering a hypothetical question of the specific sort that I have written in the application questionaire, and in that context, then deciding a real case.

Also, many of the points that you make above also seem predicated on the assumption that the answers to the questions will be published, yet that will not necessarily be so.

[quote:3dvtm2np]This is very cold comfort. First, a hypothetical question which suggests an answer that is perfectly clear and indisputable to Ashcroft might indicate two different things. First, it might indicate that the answer is actually clear and indisputable (although I doubt there is any such answer in law). Second, it might indicate that the question and answer are suggested by a deep, abiding, unconscious, unscrutinized, and immoveable prejudice in Ashcroft about the issue. In other words, people can be utterly convinced of a proposition on two bases: (1) the eminently reasonableness of the propisiton or (2) the unreasonable and unreasoning prejudice of the person believing the proposition. Further, the actions of people are indistinguishable regardless of the basis of their action -- reason or faith.[/quote:3dvtm2np]

That is no more or less true of hypothetical questions than of [i:3dvtm2np]any[/i:3dvtm2np] questions. Any process where one person or set of people are required to test the suitability of one or more people for any given task necessarily and unavoidably requires placing a considerable degree of trust in the judgment of the person or people conducting the assessment. The particular questionaire that I have written raises no issues in this respect that are not necessarily raised by any applications process.

[quote:3dvtm2np]Second, even if Ashcroft is completely honest and completely self-aware and completely correct in his denial of bias, an institution that relies on such honesty, self-knowledge and integrity is on very dangerous and uneasy footing. We cannot know the internal workings of the people we charge with institutional power. Therefore, we must be careful to set up institutional processes that do not rely on the moral rightnessof the administrators. An institution that relies on the goodness of its administrators is inherently dangerous because it can be abused, without ready remedy, by people with bad motives. For this reason, I think such institutions are not only dangerous, they are illegitimate.

I have all the faith in the world that Ashcroft is a good man and has the interests of CDS at heart. However, this is not my analysis. I ask, what would happen if Hitler, and not Ashcroft, were evaluating my answers to these questions. If the answer is, "I would be disqualified for improper reasons without an ability to correct that evaluation" -- then the evaluation system is fundamentally flawed.[/quote:3dvtm2np]

If Hitler (or Milosevic, or Dr. Evil, or any other archetypal villain) were to be a judge, there would be rather more important things to worry about than hypothetical questions in the qualification requirements.

Any judicial system necessarily and unavoidably rests on the trustworthiness of its judges: that is why the qualification requirements are so strict in the first place. If we start with the premise that judges cannot be trusted to at least some significant extent, the inevitable conclusion is that the rule of law is not attainable at all. That is not a conclusion that the experience of the operation of the judiciary in most civilised countries compels.

Last edited by Ashcroft Burnham on Tue Nov 28, 2006 10:32 am, edited 1 time in total.
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Post by Beathan »

Ashcroft asks [quote:qsxx5mn0]I also find it odd and somewhat unhelpful that your criticism that my questions are too vague is itself extremely vague: why do you think that any of the questions are "vague"? Which of the questions do you think are vague, and what precisely do you think is vague about them? Can you give examples of questions on the same topics that are not vague? What is it about the particular kind of vagueness that you describe render them incapable of appropriate answer? [/quote:qsxx5mn0]

In the application, Ashcroft asks, essentially [quote:qsxx5mn0]What is Justice? Answer in 750 words.[/quote:qsxx5mn0] I'm not sure that my criticism requires more than this quotation. Last I checked, both Socrates and Diogenes spent lifetimes, and far more than 750 words, even trying to define this question without beginning to answer it.

Also, Ashcroft indicates that he believes that he has responded to my criticisms, but that I have not replied. The problem is that, as I have said in my replies, I don't think Ashcroft has in fact provided any substantive responses to my criticisms. Rather, he has posted defenses of his process that do not actually respond to the criticism in any substantive way.

A case in point concerns my observation that, unlike a nomination and confirmation process, there is nothing in the current application that gets to critical issues of judicial character and temperament. These critical aspects of the office (aspects that I personally consider to me more critical aspects than the analytical abilities on which the examination focusses) are not addressed by the application process at all. To this criticism Ashcroft answers: (1) the statement of judicial qualification includes these issues and (2) these issues are particularly difficult or impossible to reveal through examination. However, this criticism makes rather than answers my point. To be qualified, judges mush have good judicial character and temperament, but there is no guarantee, even a slight guarantee, from the application process that our judges will have such character and temperament.

Personally, I believe that each of Ashcroft's responses amounts to a similar analysis. "That might be a problem -- but the examination would be impossible otherwise, so I'm going to pretend it is not a problem." This response is only proper if we are deeply committed to examinations as qualifying tools. I see no reason to maintain that commitment, in the face of my criticism, when, as I point out, there are far better and far more nuanced and far less burdensome qualifying tools available.

To propose a solution to the current impasse, I offer the following. Ashcroft has been clear that his application is intended to be a sorting mechanism to qualify applicants, not to select them. Ultimately, selection is done by another body. Therefore, I submit that we can and should allow applicants to apply directly to the selection body, bypassing Ashcroft's qualification procedure. Such applicants would not come to the body prequalified. The selecting body could then, on its own authority, either qualify the applicant through a process that satisfies them as to qualifications or reject all unprequalified applicants out of hand. This process would be similar to the process used in the United States, which which people proposed for Federal Judgeships have their qualifications rated by the American Bar Associations, but in which the ABA's qualification procedure plays a persuasive role only.

Beathan

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