To a Simpler Judiciary

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Justice Soothsayer
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To a Simpler Judiciary

Post by Justice Soothsayer »

[b:3g2l6lf4]To a Simpler Judiciary, or "Rethinking the Great Compromise"[/b:3g2l6lf4]

I have been giving a great deal of thought to our various judicial debates in recent days, and have been re-thinking the “Great Compromise” (as Ashcroft describes it). I’ve spent a fair amount of time discussing matters with my fellow citizens, including DPU and CSDF members, the “Simpletons”, and the factionless. I have concluded that in the name of “judicial independence” we have created a system of “qualifying” judges that the citizenry does not respect, that strong potential candidates for judgeships won’t accept, and that so far has not identified a single judicial candidate. Soon to come will also be a massive “Code of Procedures” that will attempt to anticipate every possible set of circumstances. We are heading for a system that only lawyers can manage and only a very few will appreciate.

I welcome the sentiment that we should test the waters by conducting a referendum of the citizens, but in our representative democracy it is the RA that must make the tough decisions. Put another way, it was the RA that got us into this, and now it is the RA’s responsibility to find a way out. I will therefore be submitting legislation to:

1. Delete the [url=http://forums.neufreistadt.info/viewtop ... 7:3g2l6lf4]Judiciary Act’s[/url:3g2l6lf4] lengthy Article VII (Judiciary) from the Constitution and replace it with the following 101 words: “There shall be a judiciary consisting of three or more Judges as the Representative Assembly shall determine from time to time are required. Judges shall be nominated by majority vote of the Scientific Council and appointed by a two-thirds vote of the Representative Assembly. Judges shall serve a term of one calendar year from appointment, and may be reappointed for subsequent terms. Judges may be impeached and removed from office upon a two-thirds vote of the Scientific Council. The Judiciary Commission and the positions of Chief Judge, Chair of the Judiciary Commission, and the Public Judiciary Scrutiny Panel are hereby abolished.”;

2. Return the power of appointment of Judges to the SC with confirmation by the RA (as was done with the appointment of Ashcroft as our initial judge);

3. Eliminate lifetime tenure of judges, setting judicial terms as equivalent to two legislative terms (thereby preserving a measure of "judicial independence" by isolating judges from electoral politics), allowing for re-appointment (and impeachment by two-thirds of the SC), and retaining Ashcroft as the first of these judges;

4. Create up to 5 judgeships (because we need 1 trial judge, 3 for an appeal, and an odd number to break any deadlocks when the judges act collectively);

5. Require the assignment of cases by random draw to one judge, and a panel of three judges for purposes of any appeal; and

6. Create the position of “Administrative Judge”, to be selected by and among the judges to serve for each legislative term.

I am posting the proposed Constitutional Amendment and Act on the Legislative Discussion forum.

Finally, a word about the debate and what I hope will become a more civil discourse. The [i:3g2l6lf4]ad hominem[/i:3g2l6lf4] attacks in these fora and elsewhere of late have been most unfortunate. Many citizens have concluded that the new judicial system is and will be unworkable, and they are people of good will. Similarly, Ashcroft is also a person of good will and great character who I hope will continue to serve in a judicial capacity in my proposed revision of the system, and who has devoted countless hours to this project. I happen to believe that Ashcroft has over-thought and over-designed the judicial system, but I have great respect for the work that he has done to get us to this point. With some significant changes, we will have a judicial system which will have the respect of all of our citizens, will be a model for the Metaverse, and of which we can all be justifiably proud.

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Post by Beathan »

Excellent and brilliant proposal. This is superior in most ways to my own.

Beathan

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Re: To a Simpler Judiciary

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":28xskck0][b:28xskck0]To a Simpler Judiciary, or "Rethinking the Great Compromise"[/b:28xskck0]

I have been giving a great deal of thought to our various judicial debates in recent days, and have been re-thinking the “Great Compromise” (as Ashcroft describes it). I’ve spent a fair amount of time discussing matters with my fellow citizens, including DPU and CSDF members, the “Simpletons”, and the factionless. I have concluded that in the name of “judicial independence” we have created a system of “qualifying” judges that the citizenry does not respect, that strong potential candidates for judgeships won’t accept, and that so far has not identified a single judicial candidate. Soon to come will also be a massive “Code of Procedures” that will attempt to anticipate every possible set of circumstances. We are heading for a system that only lawyers can manage and only a very few will appreciate.

I welcome the sentiment that we should test the waters by conducting a referendum of the citizens, but in our representative democracy it is the RA that must make the tough decisions. Put another way, it was the RA that got us into this, and now it is the RA’s responsibility to find a way out. I will therefore be submitting legislation to...[/quote:28xskck0]

Why is your solution to two problems that do not even exist yet to change the entire structure of what was agreed after great debate?

The judicial qualifications process I designed in good faith to ensure that the judges that it would select would be of a high enough calibre to serve our community. I did that because I know the dangers of judges who are not of sufficient calibre. If it fails to produce any candidates by the 8th of December, I will change it. If, thereafter, you are not happy with the changes, you can impliment the special commissioners proposal.

As to the codes of procedure, it is absurd in the extreme to criticise a document that you have not even [i:28xskck0]seen[/i:28xskck0] yet. In any event, if the legislature really does not like it, it can over-ride it.

Both of the things that you think are problems (if they are problems at all) can be solved without reneging on your end of the compromise on judicial independence, or undoing a piece of legislation on which I spent a huge amount of time and effort.

Why do I get the impression that you were waiting for any excuse to get back the ground that you gave when you compromised?

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Post by Justice Soothsayer »

Both of these problems are real and present, and I think a change of course is needed before we get too much further down the path you have charted.

Why do I think "judicial independence" has become the CDS version of Dubya's "stay the course"?

Last edited by Justice Soothsayer on Mon Dec 04, 2006 2:40 pm, edited 1 time in total.
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Re: To a Simpler Judiciary

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":3mjpa9eg]Finally, a word about the debate and what I hope will become a more civil discourse. The [i:3mjpa9eg]ad hominem[/i:3mjpa9eg] attacks in these fora and elsewhere of late have been most unfortunate. Many citizens have concluded that the new judicial system is and will be unworkable, and they are people of good will.[/quote:3mjpa9eg]

People of good will or not, it is grossly premature to dismiss a system as "unworkable" before it has even been given a [i:3mjpa9eg]chance[/i:3mjpa9eg] to work, and highly irresponsible and rash not to give it such a chance.

Furthermore, your anti-judicial-independence agenda has nothing to do with workability, and everything to do with undoing the concessions that you made in good faith when we compromised.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1ar9skkx]Both of these problems are real and present, and I think a change of course is needed before we get too much further down the path you have charted[/quote:1ar9skkx]

This is avoidance: [i:1ar9skkx]why[/i:1ar9skkx] do those two problems (even if they are problems) require solutions beyond special commissioners and legislation on procedure?

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Post by Beathan »

Ashcroft wrote [quote:2v5lb7zu]People of good will or not, it is grossly premature to dismiss a system as "unworkable" before it has even been given a chance to work, and highly irresponsible and rash not to give it such a chance. [/quote:2v5lb7zu]

This is not a fair criticism of the criticism. The criticism is that we have waited long enough for the system to work. If it is not working, it is broken. Surely, it is fair to put reasonable time limits on a project or institution and to say, if things are not happening within a reasonable time, that we need to go back to the drawing board and get something up and running. Otherwise we are trapped in "Waiting for Godot."

Actually, I am reminded of a joke. A man was nervous after he got married because his wife had been married three times before. He was not that young any more and was worried that he would not live up to her past experience in bed. She told him, not to worry.

"See, my first husband was old -- he was rich -- but he was old. He'd huff and blow -- but, it was in the days before viagra, so there was nothing doing. Finally, he died, and I thought I'd get myself a hot young beau -- so I did. And he was awful. Slam, bam, thankyou ma'am -- and it was over. Unsatisfying. So I got rid of him. But my third husband was the worst. He was an urban planner, so he'd just sit at the edge of the bed and tell me how good things would be someday."

Beathan

Last edited by Beathan on Mon Dec 04, 2006 2:49 pm, edited 2 times in total.
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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":2wtbl25w]Why do I think "judicial independence" has become the CDS version of Dubya's "stay the course"?[/quote:2wtbl25w]

Because you don't undertand the importance of judicial independence?

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Post by Justice Soothsayer »

"Judicial independence" has nothing to do with how the system is structured, it is to ensure that judges decide cases on their merits and not on outside influences.

We should work more about "judicial legitimacy", as many of the citizenry who have been watching this project evolve have, it seems, lost faith. And try to avoid words like "absurd", "irresponsible" and "insane" to describe the position of those who dissent.

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Post by Ashcroft Burnham »

[quote="Beathan":3gg46k37]This is not a fair criticism of the criticism. The criticism is that we have waited long enough for the system to work. If it is not working, it is broken. Surely, it is fair to put reasonable time limits on a project or institution and to say, if things are not happening within a reasonable time, that we need to go back to the drawing board and get something up and running. Otherwise we are trapped in "Waiting for Godot."[/quote:3gg46k37]

I have set the final deadline for the applicants for qualification for the end of this week. I have stated repeatedly that the qualificaiton requirements will be reviewed if there are no applicants by then.

The code of procedure is almost ready. It would have been ready some time ago were it not for me having to take so much time to respond to your attacks on the judiciary and having to expedite the qualifications process under threat of the legislature demolishing important parts of the Judiciary Act, which, despite me having expedited to the best of my ability (and taking a huge amount of my personal time in doing so), some legislators, in any event, want to demolish anyway.

I have also been told by the leader of the Representative Assembly that the system will not inspire public confidence unless it does not start until there are more judges. At the same time, I am being criticised for not already having started. I am not the one making the unfair criticisms.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1quv0puo]"Judicial independence" has nothing to do with how the system is structured, it is to ensure that judges decide cases on their merits and not on outside influences.[/quote:1quv0puo]

I am extremely dismayed that you are failing to answer my question about [i:1quv0puo]why[/i:1quv0puo] those two problems that you have cited (even granted that they are problems) require more than the two potential solutions that I have stipulated.

As I have stated repeatedly, however, in our debates before, which it is very disturbing that you do not seem to remember, the structure that you stipulate (judges being appointed by the [i:1quv0puo]legislature[/i:1quv0puo], and not even having security of tenure) [i:1quv0puo]would[/i:1quv0puo] place judges under substantial pressure from outside influences, namely the influence that, if they are not the sort of people who will decide cases in ways favourable to the government (or present government policy, or what is presently popular), they will not be appointed in the first place, and if they do not decide cases during their office in the way that the government likes, they will not be re-appointed.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":35zy8xhn]
I have set the final deadline for the applicants for qualification for the end of this week. I have stated repeatedly that the qualificaiton requirements will be reviewed if there are no applicants by then.[/quote:35zy8xhn]

And the legislature said on November 18th by unanimous resolution that we were prepared to consider changing the method of judicial selection as early as December 2nd if no progress had been made.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":10tx80tf]As I have stated repeatedly, however, in our debates before, which it is very disturbing that you do not seem to remember, the structure that you stipulate (judges being appointed by the [i:10tx80tf]legislature[/i:10tx80tf], and not even having security of tenure) [i:10tx80tf]would[/i:10tx80tf] place judges under substantial pressure from outside influences, namely the influence that, if they are not the sort of people who will decide cases in ways favourable to the government (or present government policy, or what is presently popular), they will not be appointed in the first place, and if they do not decide cases during their office in the way that the government likes, they will not be re-appointed.[/quote:10tx80tf]

What has changed since then is that I have seen firsthand the kind of judicial system you would have us live under, and I and many others are none too happy with it. You appointed yourself Chief Judge for life, when the better practice would have been to wait for further judges. You asked for public comments about the qualification requirements, then made no changes in response to what I consider very valid criticisms. When those requirements generated no applications, you extended the deadline. And your forthcoming code you describe as a "massive" (or is it "mammoth"?) undertaking, meant to anticipate all possible scenarious. I think your actions have given sufficient reason for reconsidering the benefits of lifetime tenure. Providing that judicial terms overlap those of at least two terms of the legislature will, in my view, accomplish the objective of assuring that cases are decided on their merits.

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Post by Beathan »

Ashcroft wrote [quote:ec3o2r3c]The code of procedure is almost ready. It would have been ready some time ago were it not for me having to take so much time to respond to your attacks on the judiciary and having to expedite the qualifications process under threat of the legislature demolishing important parts of the Judiciary Act, which, despite me having expedited to the best of my ability (and taking a huge amount of my personal time in doing so), some legislators, in any event, want to demolish anyway.

I have also been told by the leader of the Representative Assembly that the system will not inspire public confidence unless it does not start until there are more judges. At the same time, I am being criticised for not already having started. I am not the one making the unfair criticisms.
[/quote:ec3o2r3c]

Well, the popular consensus is that Ashcroft and I have been pigheaded, unfair to each other, and overly personal in our mutual criticism. I agree with this criticism of many of my postings, and I continue to try to moderate my responses to you and Patroklus. Unfortunately, my efforts at moderation do not come naturally to me and I often fall short.

That said, fortunately for both of us (and for Pat), cooler heads have prevailed and gotten involved. Justice, in particular, is a voice of reason and a cool breeze. I am prepared to defer to Justice, who is far more able than I am to craft a fair and acceptable proposal in light of CDS's needs and history. I think that rather than defend the unpopular Judiciary Act, Ashcroft should similarly agree to reopen debate and move to a consensus solution. We are a democracy; as such, debate is never closed.

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Post by Justice Soothsayer »

On a MUCH lighter note, I'll offer this observation from US Chief Justice John Roberts:

[quote="Chief Justice Roberts":24khpyrg]Here's a story I think President Reagan would have appreciated. The Russian judge was at a meeting in Western Europe and they asked him "Which judicial model are you using for judicial administration?" He said, "the American model." This didn't go over too well in Western Europe. In fact, one of the participants said, according to this Russian judge, "Well, if all you want is a can of Coke you didn't have to come to Europe to get it." The Russian judge said, "I don't much like Coke," he said, "I like my wine French, I like my beer German, I like my vodka Russian, and I like my judicial institutions American." [/quote:24khpyrg]

See The Reagan Lecture Delivered by the Honorable John G. Roberts, Jr., transcript available at http://www.reaganfoundation.org/pdfs/RemarksRoberts.pdf

(Thanks to [url=http://volokh.com/posts/1164948474.shtml:24khpyrg]Volokh Conspiracy[/url:24khpyrg] for the quotation)

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