Expediting the development of our legal system

[Ashcroft Burnham]

[quote="Tad Peckham":4nuk9mp2]i guess this is where i have a problem. you believe that judges should be appointed, because [quote:4nuk9mp2] those who appoint judges (existing senior judges themselves) are precisely those who simultaneously know who is best qualified for the job, and have the least personal interest in the outcomes of cases [/quote:4nuk9mp2] while at the same you said that [quote:4nuk9mp2] it is vital that judges are completely impartial and independent, and make their judgments based on, and only on, [i:4nuk9mp2]their genuine view of what the law and correct outcome of a case is, and do not take into account in any way what other people might think of that decision.[/i:4nuk9mp2] [/quote:4nuk9mp2] i think it is important to note that someone's genuine view of what the law is might not reflect what the law actually is.[/quote:4nuk9mp2]

Do you have any reasons to believe that any other method of appointment is capable of producing judges who are more skilled at interpreting the law correctly? If so, what are they?

[quote:4nuk9mp2]the danger that i see here is that by limiting judiciary appointments to members of the SC, the law becomes limited in scope and applicability by the viewpoint of the SC and the SC alone.[/quote:4nuk9mp2]

What do you mean by that, exactly? According to my propsals, the Scientific Cocunil would not appoint every judge, only the Chair of the Judiciary Commission. The Chair of the Judiciary Commission would appoint the Chief Judge, and the Chief Judge would appoint all the other judges. Why do you think that there is a specific Scientific Council viewpoint, and why do you think that judges appointed by a chief judge appointed by a chair of a commission appointed by the Scientific Council would necessarily share that view? The Scientific Council is a body of people, all of whom no doubt have their own individual views, as would individual judges. The reasoning behind your suggestion here is most unclear.

[quote:4nuk9mp2]while i understand there are safeguards in check (such as removal from office) having to go through that process seems highly bureaucratic, and a process that could detract from more important political matters.[/quote:4nuk9mp2]

Removal from office is necessary only in extreme cases. The best appointment system will, amongst other things, minimise those cases. Why do you think that the number of judges who are guilty of bias, corruption, insanity or gross dereliction of duty will be greater in the system of appointments that I suggest, rather than any other?

[quote:4nuk9mp2]i think that is a risk i am willing to take.[/quote:4nuk9mp2]

Why? What is the benefit to be weighed against that extreme risk? You have so far identified none.

[quote:4nuk9mp2]to put it another way, we elect members of our legislative and executive branch of government and expect them to be the voice of the people.[/quote:4nuk9mp2]

Actually, we elect people because that is the means of determining who holds office that best ensures that those who do hold office do not abuse their power, and those who are not selected have no legitimate complaint about the manner of appointment. Government officials must take their own initiative in policy, rather than merely being the mouthpiece for others.

[quote:4nuk9mp2]however, those people have clear political biases and often act out based on those biases, and not the will of the people.[/quote:4nuk9mp2]

Acting in accordance with the will of others preceisely [i:4nuk9mp2]is[/i:4nuk9mp2] a form of bias.

[quote:4nuk9mp2]however, we accept the system and live with that system because it is the closest thing to a representative government we have. [/quote:4nuk9mp2]

Democracy is only good because it serves the ends that government, inherently, is there to serve, not because democracy is an end in itself.

[quote:4nuk9mp2]along those lines, when it comes to these branches of government people readily accept that the people we vote into these offices have a bias and will act based on that bias. yet, when it comes to the judicial branch, we try and remove the word bias from our vocabulary. we expect judges to be impartial. however, they can only be as impartial as their own interpretation of the law.

i want to make it clear that i am not against judiciary appointments. however, when it comes to the judiciary chair, i believe the people should have a voice, especially if the judiciary chair serves a life term. it concerns me that the SC would have the power to appoint the person who will interpret and define the laws of the CDS for the rest of our second lives.[/quote:4nuk9mp2]

Why does it concern you? Why do you think that there will be [i:4nuk9mp2]better[/i:4nuk9mp2] judges if they are appointed in some other way? Remember, judges do not hold political power: the Representative Assembly always has the power to pass any law by which judges will be bound. Their job is a technical one, not a political one. They dispense justice in individual cases. That is inherently incompatible with a political appointment.

[Tad Peckham]

[quote:oh3hv5ik]Do you have any reasons to believe that any other method of appointment is capable of producing judges who are more skilled at interpreting the law correctly? If so, what are they?[/quote:oh3hv5ik]

again, i am not questioning the process of appointments. what i am questioning is the process of appointing the judiciary chair, and only the judiciary chair. i am fine with the judiciary chair making whatever appointments he or she sees fit if, and only if, the people have a voice in whom will hold the office of judiciary chair.

[quote:oh3hv5ik]What do you mean by that, exactly? According to my propsals, the Scientific Cocunil would not appoint every judge, only the Chair of the Judiciary Commission. [/quote:oh3hv5ik]

again, this is my problem: a small body of unelected people should not be given the power to appoint a person who has direct control over the appointments of all other judges interpreting the law.

[quote:oh3hv5ik]Why do you think that there is a specific Scientific Council viewpoint, and why do you think that judges appointed by a chief judge appointed by a chair of a commission appointed by the Scientific Council would necessarily share that view?[/quote:oh3hv5ik]

if the SC has to collectively decide who will be the judiciary chair, then it stands to reason that at least in terms of who will be judiciary chair, the SC will have to come to some collective/majority viewpoint! i have every reason to believe that the person chosen to be judiciary chair by the SC would echo the beliefs of the SC, at least when it comes to how the law should be interpreted, considering the SC has to vote on who will hold the position!

[quote:oh3hv5ik]Why? What is the benefit to be weighed against that extreme risk? You have so far identified none.[/quote:oh3hv5ik]

actually, i think i identified my case quite clearly. i don't think the appointment of judiciary chair should be relegated to a self-selected meritocracy known as the SC. laws are only as powerful as the peoples' ability to enforce them as they see fit. i see the job as judiciary chair as a political one, and in order for the laws to be enforced as the people see fit, the people should be allowed to vote on who is to become judiciary chair.

[quote:oh3hv5ik]Acting in accordance with the will of others preceisely is a form of bias.[/quote:oh3hv5ik]

that was part the point i was trying to make. i would rather have the judiciary chair exercising his or her bias in accordance of a popular vote by the people, rather than by the appointment of an unelected council.

[quote:oh3hv5ik]Why does it concern you? Why do you think that there will be better judges if they are appointed in some other way? Remember, judges do not hold political power:[/quote:oh3hv5ik]
again, i disagree that judges do not have political power. judges, at least in my country, have vast political powers in how they interpret the law. true, the RA has the power to pass laws, but those laws are only as effective in how judges interpret, and apply them.

lastly, i am not sure i ever made the case that better judges would be appointed through a popular vote, i simply believe the people should have the power to decide.

[Justice Soothsayer]

At the last RA meeting, I indicated that I would withdraw my 5 judicial bills, and instead propose some amendments to Ashcroft’s comprehensive bill. I am offering the following amendments to Ashcroft’s most recently revised Judiciary Bill.

[b:1qh3qzri](1) Alternative Dispute Resolution[/b:1qh3qzri]

[list:1qh3qzri]DELETE Chapter I, Section 2 (b) that would repeal Article III, Section 7 of the Constitution (the clause that provides for alternative dispute resolution).[/list:u:1qh3qzri]

[i:1qh3qzri]Discussion:[/i:1qh3qzri]

[list:1qh3qzri]Mediation has many advantages (see e.g. http://www.abanet.org/publiced/courts/m ... tages.html) including some of the following listed here:[/list:u:1qh3qzri]

• [b:1qh3qzri]You get to decide: [/b:1qh3qzri]The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chancesâ€

[Tad Peckham]

[quote:3830202q]a. The Chair of the Judicial Commission shall be selected by a simple majority vote of the Scientific Council and upon confirmation by a two-thirds majority vote of the Representative Assembly shall hold office until resignation or successful impeachment, whichever is sooner.[/quote:3830202q]

i think this has potential because the people are given a voice in the process through the members of the RA.

[Ashcroft Burnham]

Sorry for not responding earlier: I was involved in the Democratic Peace seminar yesterday evening, and the lengthy after-discussions.

[quote="Justice Soothsayer":1ia5pd6t]At the last RA meeting, I indicated that I would withdraw my 5 judicial bills, and instead propose some amendments to Ashcroft’s comprehensive bill. I am offering the following amendments to Ashcroft’s most recently revised Judiciary Bill.

[b:1ia5pd6t](1) Alternative Dispute Resolution[/b:1ia5pd6t]

[list:1ia5pd6t]DELETE Chapter I, Section 2 (b) that would repeal Article III, Section 7 of the Constitution (the clause that provides for alternative dispute resolution).[/list:u:1ia5pd6t][/quote:1ia5pd6t]

As a matter of form, if you simply did this, there would be [i:1ia5pd6t]two[/i:1ia5pd6t] section 7s, because the [b:1ia5pd6t]Judiciary Bill[/b:1ia5pd6t] inserts a new section 7 to go in its place.

[quote][i:1ia5pd6t]Discussion:[/i:1ia5pd6t]

[list:1ia5pd6t]Mediation has many advantages (see e.g. http://www.abanet.org/publiced/courts/m ... tages.html) including some of the following listed here:[/list:u:1ia5pd6t]

• [b:1ia5pd6t]You get to decide: [/b:1ia5pd6t]The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chancesâ€

[Tad Peckham]

[quote:17ng7zvp]How would your system ensure that better judges are selected than my system?[/quote:17ng7zvp]

i think this will probably be my last post in regards to this question. i am not sure the case was ever made for an alternate system that would ensure better judges are selected. rather, my concern is finding a system that is most fair for the citizens of the CDS. i will not speak for justice soothsayer, but the justice does provide for citizen involvement in the appointment process by requiring the RA approve the judiciary chair by a 2/3 majority. again, it might not ensure that a better judiciary chair is appointed, but by including the RA in the approval process, the citizens will have a voice as to whom will be interpreting their laws, and that voice should be integral to this appointment process.

[Ashcroft Burnham]

[quote="Tad Peckham":1ox8nroe]i think this will probably be my last post in regards to this question. i am not sure the case was ever made for an alternate system that would ensure better judges are selected. rather, my concern is finding a system that is most fair for the citizens of the CDS. i will not speak for justice soothsayer, but the justice does provide for citizen involvement in the appointment process by requiring the RA approve the judiciary chair by a 2/3 majority. again, it might not ensure that a better judiciary chair is appointed, but by including the RA in the approval process, the citizens will have a voice as to whom will be interpreting their laws, and that voice should be integral to this appointment process.[/quote:1ox8nroe]

Why, if the judges are no better? What do you claim that the [i:1ox8nroe]function[/i:1ox8nroe] of citizens "having a voice" in the appointment of judges is? Do you think that citizens should "have a voice" in a similar way in the appointment of police officers, firefighthers, senior members of the armed forces, civil servnants? If not, what is so special about judges?

[Tad Peckham]

ok, one more post.

[quote:1xl8uq44]Why, if the judges are no better?[/quote:1xl8uq44]

because the judiciary chair will be responsible for the appointment of judges who will be interpreting laws that citizens live by. because by allowing citizens to have a voice, it makes the process more fair. fair does not always mean better, and i have stated before why i am willing to live with the risks of having a system that weighs fairness higher than 'better'.

[quote:1xl8uq44]What do you claim that the function of citizens "having a voice" in the appointment of judges is?[/quote:1xl8uq44]

i have already covered this point many times. the judiciary chair will be interpreting citizen law and appointing judges, therefore the citizens should have a voice as to whom is interpreting their laws.

[quote:1xl8uq44]Do you think that citizens should "have a voice" in a similar way in the appointment of police officers, firefighthers, senior members of the armed forces, civil servnants?[/quote:1xl8uq44]

i fail to see the logical comparison here. however, in my country, we do elect our police and fire chiefs and other civil servants. once again ashcroft, i have never, not once, made a case against political appointments. what i am trying to tell you is that despite your claims to the contrary, i believe the job of judiciary chair is political in nature; the judiciary chair is responsible for interpreting and applying citizen law. ultimately, the judiciary speaks for the people; because of that, the citizens should have a voice as to sits in that chair. i am not sure how much more clear i can be.

edit: if you have any further questions, please find me in-world. thanks!

[Ashcroft Burnham]

[quote="Tad Peckham":kvfybzi6]because the judiciary chair will be responsible for the appointment of judges who will be interpreting laws that citizens live by. because by allowing citizens to have a voice, it makes the process more fair. fair does not always mean better, and i have stated before why i am willing to live with the risks of having a system that weighs fairness higher than 'better'.[/quote:kvfybzi6]

What exactly is your concept of fairness, if you think that it is conceivable that something can be simultaneously better but less fair? Something is unfair when, and only when, a person suffers as a result of another's wrong. Why do you think that this would be more likely under the appointment system that I suggest rather than under the appointment system that you suggest?

[quote:kvfybzi6]i have already covered this point many times. the judiciary chair will be interpreting citizen law and appointing judges, therefore the citizens should have a voice as to whom is interpreting their laws. [/quote:kvfybzi6]

That is a non-answer: I ask what the [i:kvfybzi6]function[/i:kvfybzi6] of citizens having a voice is, and you reply that, because judges do particular things, citizens should have a voice. That is not a description of the [i:kvfybzi6]function[/i:kvfybzi6] of citizens having a voice.

[quote:kvfybzi6]...Once again ashcroft, i have never, not once, made a case against political appointments. what i am trying to tell you is that despite your claims to the contrary, i believe the job of judiciary chair is political in nature; the judiciary chair is responsible for interpreting and applying citizen law. ultimately, the judiciary speaks for the people; because of that, the citizens should have a voice as to sits in that chair. i am not sure how much more clear i can be.[/quote:kvfybzi6]

You say that the Chair of the Judiciary Commission is a political appointment, and then go on to describe the job without describing any political functions! A [i:kvfybzi6]political[/i:kvfybzi6] office is one responsible for [i:kvfybzi6]policy[/i:kvfybzi6]. The executive and legislature are both responsible for policy: the administration and the judiciary are not. Interpreting and applying law does not entail making policy decisions, and therefore is not a political function.

In what sense do you claim that interpreting and applying the law involves speaking for people? The judiciary does not, as the legislature and executive do, [i:kvfybzi6]represent[/i:kvfybzi6] anybody: the judiciary delivers justice in individual cases. That is not a [i:kvfybzi6]representative[/i:kvfybzi6] function, but a [i:kvfybzi6]judicial[/i:kvfybzi6] one.

[Tad Peckham]

[quote:1yy41whe]Interpreting and applying law does not entail making policy decisions, and therefore is not a political function.[/quote:1yy41whe]

i repsectfully disagree. judicial activism is a form of political power, and is a clear and present danger regardless of who is appointing judges. see: http://en.wikipedia.org/wiki/Judicial_activism

the judicial branch in my country also holds vast political powers. see: http://en.wikipedia.org/wiki/Checks_and_balances

for example, judicial decisions on such cases as brown vs board of education, roe v wade, and united states vs nixon all carried VAST political and social implications in my country.

also, according to wikipedia "however, the president's practice of appointing justices with similar real, perceived or expected ideology can be seen to compromise judicial independence" and i agree. the president can appoint anyone to the supreme court with an ideology similar to his. that is no different from the SC being able to apppoint anyone to the judiciary chair they see fit. that is why the people (or RA) should have a voice in the process.

again, i would respectfully ask that you seek me out in world if you have additional comments. i feel like i have waisted enough space on this board saying the same thing over and over again.

[Ashcroft Burnham]

[quote="Tad Peckham":650wzw0w]i repsectfully disagree. judicial activism is a form of political power, and is a clear and present danger regardless of who is appointing judges. see: http://en.wikipedia.org/wiki/Judicial_activism

the judicial branch in my country also holds vast political powers. see: http://en.wikipedia.org/wiki/Checks_and_balances

for example, judicial decisions on such cases as brown vs board of education, roe v wade, and united states vs nixon all carried VAST political and social implications in my country. [/quote:650wzw0w]

Our legal system will be markedly different to that of the US in one important respect: proposed Article VII, Section 14 provides:

[quote="The Judiciary Bill":650wzw0w]A Judge of Common Jurisdiction, when delivering any judgment in any proceedings, or part thereof, in any Court of Common Jurisdiction, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect. [/quote:650wzw0w]

There is a similar provision for the Court of Scientific Council. Judges in our jurisdiction, therefore, unlike the US, cannot overturn legislative decisions on the basis that they conflict with vague rights conferred by the constitution, which forms the only possible basis for judicial activism. The legislature has greater power in our system because, if ratified by the Scientific Council (also a self-appointed body - nobody seems to have questioned that during this debate), its legislation cannot be upturned by the courts.

That means, in turn, that the legislature always has the power to control the law fully, however judges are appointed, and that the process of the interpretation of law can never have any real, long-term effect on the legislature's policies. Whatever the position in the US, therefore, in our jurisdiction, the principle of legislative supremacy, not the appointment mechanism for judges, prevents unelected institutions weilding significant policymaking powers.

[quote:650wzw0w]also, according to wikipedia "however, the president's practice of appointing justices with similar real, perceived or expected ideology can be seen to compromise judicial independence" and i agree. the president can appoint anyone to the supreme court with an ideology similar to his. that is no different from the SC being able to apppoint anyone to the judiciary chair they see fit. that is why the people (or RA) should have a voice in the process.[/quote:650wzw0w]

That argument fails because the Scientific Council is not itself a political body (which is why it, and not the Representative Assembly, was chosen to appoint the Chair of the Judiciary Commission). The Scientific Council is a "self-selected meritocracy" (Article VI of the Constitution), with no policymaking powers. The idea of the separation of the powers requires that [i:650wzw0w]legislative[/i:650wzw0w], [i:650wzw0w]executive[/i:650wzw0w] and [i:650wzw0w]judicial[/i:650wzw0w] powers all be separated. Appointment of members of the judiciary by the legislature (the Representative Assembly) or the executive (the Chancellor) would contravene the principle, whereas appointment by a branch whose current functions are [i:650wzw0w]already[/i:650wzw0w] judicial would not. You seem to think that "giving the people a voice" by permitting a politician to appoint the judiciary would prevent the appointment of members of the judiciary on the basis of similarity of political opinion rather than legal skill, yet such political involvement is precisely the thing that would tend to have the former effect.

[quote:650wzw0w]again, i would respectfully ask that you seek me out in world if you have additional comments. i feel like i have waisted enough space on this board saying the same thing over and over again.[/quote:650wzw0w]

I do not follow here: debate of this nature is inherently better compassed on the discussion fora because it is more time efficient to do so (one person does not have to wait for the other person to type), because, on a discussion board, people have more time to reflect and deliver considered responses, and because the discussion here is public, whereas, in world, it would be private.

[Ashcroft Burnham]

[u:icj9qde5][b:icj9qde5]Technical amendment required[/b:icj9qde5][/u:icj9qde5]

I have spotted an error in my latest draft bill related to section renumbering after I added a section. Proposed article II, Section 9 currently reads

[quote:icj9qde5]The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 8(e) of this Constitution (persons misbehaving in court).[/quote:icj9qde5]

In fact, there is now no Article VII, Section 8(e). What was proposed Article VII, Section 8(e) is now proposed Article VII, Section 9(e), and thus I propose the following amendment to my own bill:

Proposed Article II, Section 9 should read:

[quote:icj9qde5]The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 9(e) of this Constitution (persons misbehaving in court).[/quote:icj9qde5]

Sorry if I have put anybody to trouble.

[Aliasi Stonebender]

[quote="Ashcroft Burnham":3popc4wp]
That argument fails because the Scientific Council is not itself a political body (which is why it, and not the Representative Assembly, was chosen to appoint the Chair of the Judiciary Commission). The Scientific Council is a "self-selected meritocracy" (Article VI of the Constitution), with no policymaking powers. [/quote:3popc4wp]

... and comprised of people.

Believe me, Ashcroft, those of us who've been in the city for awhile have no illusions as to the fallbility of the SC.

[Ashcroft Burnham]

[b:13p3k00r][u:13p3k00r]Adendum on Justice's amendments[/b:13p3k00r][/u:13p3k00r]

One thing that I forgot to mention above when discussing Justice Soothsayer's suggested amendments was that he omitted from his selection procedures for the Cheif Judge of Common Jurisdiction and the Chair of the Judiciary Commission the requirement that I had included in later revisions of my Bill that the body appointing a person to those posts should do so "as soon as practicable after a vacancy arises".

The reason that I added that was because it is important that no institution of government is able illegitimately to subsume the power of what is supposed to be an independent judiciary by simply not appointing anybody to fill the important posts, whereupon the Scientific Council (by a recent revision) would take over by default. This would upset the delicate balance of the powers that I seek to create with this Bill.

Justice - did you deliberately omit that section, or was it a mistake? If you did omit it on purpose, why did you do so, and why did you not make express reference to the removal and the reasons for it in the discussion section? If it is a mistake, are you content that, whatever is decided on vis a vis the procedures for the selection of the Chief Judge of Common Jurisdiction and the Chair of the Judiciary Commission that the "as soon as practicable after a vacancy arises" requirement be in the Constitution?

[Ashcroft Burnham]

[quote="Aliasi Stonebender":2yqb5v3u]... and comprised of people.

Believe me, Ashcroft, those of us who've been in the city for awhile have no illusions as to the fallbility of the SC.[/quote:2yqb5v3u]

No institution or person is infallible, of course: the important thing is to find the best available institution for the job in question. In this case, for all the reasons given, the Scientific Council is the most appropriate body to appoint the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction.