[quote="Beathan":2yijni5d]No, especially given your inability to recognize that selection of judges is a political act that involves far more important issues than mere legal hypercompetence. Personally, both in RL and in SL, I would rather have a judge who listens rather than a sorting machine, even if that sorting machine were a particularly good one. Further, I have never met a client or citizen who does not agree with me.[/quote:2yijni5d]
This is a wholly unfair and inaccurate analysis of all that I have written on judicial selection. The point that I have made time and time again is that [i:2yijni5d]both[/i:2yijni5d] legal skill and the tempremental qualities that you have discussed are [i:2yijni5d]equally[/i:2yijni5d] important, and that, in our two-stage appointment process, the existing judiciary principally deal with the first, and the Public Judiciary Scrutiny Panel principally deal with the second.
[quote:2yijni5d]I cam to this same conclusion the first time I read the judiciary act. I tihnk the act is overreaching and irresponsible. As I have stated elsewhere, the passage of this act during a DPU government is one of my primary objections to the DPU. Generally, I agree with most of the DPU programs and platforms. However, when the issue is big enough, I can become a single issue voter.[/quote:2yijni5d]
It really is most unfair to criticise something with vague generalisms. What precise parts of the Judiciary Act do you claim are over-reaching and irresponsible, and in what way are they over-reaching and irresponsible? What do they over-reach, exactly?
[quote:2yijni5d]This is a misrepresentation. The unethical issues did not deter me from submitting an application. I was planning to submit an application that restated my objection to the hypothetical, recast the question in a form that did not raise my concern, and then answered the recast question. However, when I turned my attention to the remaining questions, especially in light of the requirement that I rewrite most of them, the culmulative result was that it was unduly cumbersome. In fact, applications to RL judicial positions in my jurisdiction are less cumbersome than this one. I believe that Justice Soothsayer made a similar observation early on -- one that should have been attended to at the time.[/quote:2yijni5d]
That was not the impression that you gave when you wrote:
[quote:2yijni5d]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.[/quote:2yijni5d]
[quote:2yijni5d]In fact, there is a vocal majority that agree with him. If we look over this thread, we find one, and only one, advocate for Ashcroft's position -- Ashcroft. We find one skeptical neutral -- Justice Soothsayer. We now find seven voices raised in opposition. That indicates something real.[/quote:2yijni5d]
Seven is not a majority of 61.
[quote:2yijni5d]I am not saying that parties cannot present cases on agreed facts. They do -- it is very rare in the U.S. -- but they do. What I am saying is that the hypotheticals are dangerously general. They have a tendency to prejudge cases because they are part of an application process.[/quote:2yijni5d]
This is a wholly new point not raised before. What, precisely, about being part of an application process is distinctive in causing, do you claim, the answering of such questions to prejudice future cases that are in some respects similar to them?
[quote:2yijni5d] With a few exceptions (questions that I believe omit facts that would have to be found out to answer the question), I believe that I could decide cases based on the hypotheticals if they came to me on stipulated facts. That is not the point. The point is that there is something confining in hypothetical questioning -- they will tend to limit the freedom of decision of honest judges is harmful ways.[/quote:2yijni5d]
Why does this apply to hypothetical questions and not to real judgments on equally limited facts? What is this mysterious "something limiting"?
[quote:2yijni5d]For this reason, they are not proper in judicial selection. If real parties present real facts with such limits to a judge, this problem does not arise because the judge is evaluating a real case in a real factual circumstance.[/quote:2yijni5d]
What about it being real prevents the problem from arising?
[quote:2yijni5d]This sounds like a form of pleading that has been abandoned in the United States (with the possible exception of Oregon). Most U.S. jurisdiction require what we call "notice pleading" -- that is, a pleading is sufficient if it informs the other party, in extremely general terms, what the case is about and what kind of law applies. Specific facts need not be plead -- although they must later be proved. Thereafter, the parties engage in discovery to root out the facts, often adjusting theories of the case in light of what they learn. In fact, in my ten years of litigation work, I cannot think of a single trial my firm has done that went to trial on the set of facts we understood at the outset. Every case involved some discovery during litigation that had some effect on what we presented at trial and what legal theory we tried. In fact, some cases changed in radical ways. I think this is a strength, not a weakness, of our system. It gives us the flexibility to learn and adapt to the truth through litigation. Placing a "learn the complete story first" requirement unfairly retards litigation -- presenting an insurmountable burden to filing some cases that should be heard.[/quote:2yijni5d]
I was speaking to a Scottish QC yesterday about legal procedure. The Scottish legal system uses the full propositional pleading system that I described. The advantages, as he described them, of such a system are that the issues are made clearer and resolved sooner, and there are fewer unnecessary hearings. Those hearings that there are tend to be shorter because the issues have been defined in advance.
People often tend to privilege and favour systems with which they are familliar in debates about which systems should apply. Because of our international status, no one system will be familliar to everyone. We must look independently to the merits of such systems, and especially the merits as applied to a virtual world, in which scheduling trials and other hearings is a very difficult feat, given the different timezones.
[quote:2yijni5d]In this -- as in most things -- our watchword should be "flexibility".[/quote:2yijni5d]
No, the watchword should be "balance". Flexibility must be balanced against predictability to produce fairness and efficiency.
[quote:2yijni5d]Perhaps before Ashcroft accuses me of being wrong, we should have a vote on the subject. I think both my view and his have been throughly aired. I am confident that this polity would, for the most part, share my ethical instincts and support my ethical analysis. If not, I would be willing to submit to the ethical judgment of the majority -- as any member of democratic civil society must do at some point.[/quote:2yijni5d]
Do not confuse what is popular with what is right. Merely because we all recognise democracy as an important check on [i:2yijni5d]political[/i:2yijni5d] power does not (and cannot, for it is incoherent) entail that what is popular must be right. That is to fall into the ad populam fallacy. To support democracy does not entail falling into the ad populam fallacy.
[quote:2yijni5d]I am not sure what a scientific "fair test" is. In fact, I am not aware of any science that has anything to say about what is fair or not. That is an ethical, not a scientific, judgment.[/quote:2yijni5d]
A fair test, in a scientific sense, is a test that accurately evaluates the things that it seeks to evaluate in a consistent way. A fair test is one in which the criteria applied to each thing tested are the same so that the results of each test are meaningful in comparison to the results of each other test. There is nothing distinct about science and any other kind of test in this regard: science is just the application of general reasoning to the discovery of facts about the natural world.
[quote:2yijni5d]Perhaps I should not have used the phrase "rule of law". What I meant was this. Based on reasons similar to those set forth by Rudy in his discussion of government and its purposes, I believe that freedom (at least negative freedom -- freedom from government) exists in the space between law and anarchy. If the law expands to fill this space -- fully defining the realm of human activity up to the point of anarchy -- everything we do, say and are becomes subject to legal control, and the only escape from this totalitarian rule is anarchy. This is unhealthy, debilitating, anti-democratic, and very dangerous. I agree with the rule of law over everything that should be ruled -- but I don't believe that everything should be ruled.[/quote:2yijni5d]
Nobody is going to deny that the law ought govern only that which the law ought govern: as you have expresed it, what you are claiming is merely truistic. But you seem to have been claiming above that I was claiming something contrary what you were claiming. If what you were claiming is trueistic, then you must have been claiming that what I was claiming was incoherent. Where, do you claim, is the incoherency? Where have I claimed that law ought do more than, in fact, it ought do? And what does any of this have to do with the point that I was making, which was about the rule of law?
[quote:2yijni5d]This is very sad. It dooms the UK to a real economic disadvantage to more classically liberal societies woth stronger commitments to free association. I hope that the CDS does not follow the UK down this dismal road.[/quote:2yijni5d]
There is a lot to be said for this criticism: the law of indirect discrimination in Europe is in many ways oppressive. Nonetheless, the case does illustrate the point that fairness in recruitment entails applying the same recruitment criteria to all. In the UK, it is unheard of for any kind of office, whether public or private, in any organisation of any size to be fulfilled without a recruitment process that is scrupilously fair to all in the sense of applying exactly the same procedures and tests. The general practice is that, even in interviews, the questions must be the same unless there is a good reason to ask a particular candidate something different.
[quote:2yijni5d]In an earlier post, you referred to a "purposive" interpretation of the Constitution. The purpose of our constitution is to create and ensure democratic institutions allowing for real self-rule and control over our government. This process contravenes that purpose.[/quote:2yijni5d]
It is no less a part of the purpose that our institutions bindingly resolve disputes between people about how our government should be structured by providing for representative democracy and a written constitution that precisely sets out what government can and cannot do. It contravenes that purpose to construe the constitution in the way that you seek to do.