[Senate] Hearing on Nomination of Davinescu to Uppermost Cort

[Miestră Schivă, UrN-GC]

Okey-dokey colleagues, I believe that it's my turn now. Thanks for participating, Sir Alexandreu.

INTRODUCTORY REMARKS

Talossa is a country which, much like the United States, has a very strong judiciary, co-equal with other branches of Government. Something that I don't like in the United States, however, is how very partisan the Supreme Court has gotten - i.e., whichever party in power nominates SC justices whose jurisprudence aligns with that party's politics. This was historically the case in Talossa as well - in pre-Internet days, King Robert I used to explicitly nominate "Left, Right and Centre" justices.

I am not a fan of this form of justice. This is one reason why I nominated you; not only because of your undoubted talent as a lawyer, but also because you disagree politically with just about anything that the current Government does and believes in. The current Government has no interest in packing the Cort; we have an interest in competence, and you are legally competent in spades.

However, given that, I would also like to see the Cort acting collegially, working together to achieve strong jurisprudence, rather than dividing along partisan lines. All this leads me to:

QUESTION ONE

In your inital response to the news that this Government were going to nominate V. Marcianüs to the CpI (https://talossa.proboards.com/post/168691), you said as follows:

How is he even going to work with a Cort stocked with two sitting justices for whom he has expressed mockery and harsh scorn?

Now is the time, I'm afraid, that I must turn this question back on you. To wit:

1) your insistence, expressed publically on several occasions until at least early last year, that Justice dàl Nordselva improperly communicated ex parte with myself (as acting Attorney-General) in the Cort cases around the "Proclamation Crisis", on no stronger evidence that he and I are both members of the Free Democrats of Talossa and thus of a closed Facebook group; an accusation which - as you well know - constitutes an accusation of massively unethical behaviour on behalf of the said Justice, and of myself. Bear in mind while you answer this that Justice dàl Nordselva is still a member of the Free Democrats and of that Facebook group, and so is Justice Marcianüs (as is former Senior Justice Tamorán, for that matter).

2) your extremely low opinion of Justice Marcianüs, as expressed ad tedium in many places, up to and including your questioning of him in his confirmation hearing to the CpI. Also of relevance is this post on the old Wittenberg (https://talossa.proboards.com/post/161711) where you strongly insinuate that now-Justice Marcianüs, as Attorney-General, was motivated to seek to vacate E.S. Börnatfiglheu's criminal sentence for purposes of partisan advantage, given that ESB was at the time a Free Democrat MC.

So: how are you even going to work with a Cort stocked with two sitting justices for you have either outright accused or strongly implied to be guilty of unethical or even corrupt behaviour? If you now resile from these accusations, do you feel you owe either or both Justices an apology?

QUESTION TWO

You already addressed in your answer to Senator dàl Val's question 25 the question of whether you would be able to be impartial re: cases involving the Monarchy. I would quite like you to expand on this question because being "positively disposed towards" the monarchy is not necessarily to be positively disposed to the current definition of the monarchy. For example, many Talossans support a depowered monarchy which would only intervene in governing in an emergency, such as that of England.

So I suppose I would like you to imagine a hypothetical with many similarities to that old "Proclamation Crisis" case. Say that the King takes an action based on an expansive view of his powers re: the elected parts of the Government, which is opposed by a broad majority of said elected officials. Given your Talossan-life-long devotion to "defence of the monarchy", would you be comfortable - if the law and the facts were to lead that way in your considered opinion - to declare a particular action which the King strongly defends to be ultra vires? Or would you think twice about weakening the Monarchy, upsetting His Majesty or - perhaps worse - giving succor to a  government or Cosa majority which you politically oppose?

QUESTION THREE

Returning to your questioning of now-Justice Marcianüs at his confirmation, you asked many questions about his judicial philosophy. In this hearing you have given some thorough answers to cxhn. Börnatfiglheu about your own philosophy, which I have read with interest. Given these two sets of answers, do you see significant differences in how you and Justice Marcianüs, philosophically, would approach a case and apply the law? I am comparing you to "V" only because he's the only other sitting Justice to have been required to give such an account of himself.

QUESTION FOUR

In your response to question 1 of Senator Plätschisch, you judge Justice Marcianüs' proposals for CpI procedural reform as "unobjectionable in striving for consistency". What then do you think should become of the 2006 procedures written by Admiral T. Asmourescu, which you refer to here (https://talossa.proboards.com/post/169023), and which I had honestly never heard of until you mentioned them?

Thank you, I believe that will be enough to start with.

[Baron Alexandreu Davinescu]

1. I think it will be fine.

For your first example, both the judge and one of the advocates belonged to the same private forum, where the advocate had been presenting arguments and a theory of the case privately, which the judge had been reading.  In my view, this was clearly inappropriate, but the whole Cort ruled very clearly that the practical constraints on our small Talossan community were too great to require recusal.

As to your second, I draw your attention to the post to which you linked:

"You are 100% right that I cannot know V's mind or whether or not it was to the advantage of the FDT to give you a seat. But regardless, you were given a seat by the FDT and V is a member of the FDT and he convened a hearing alone before a judge where he argued unopposed for your sentence to be curtailed. Those are the plain facts. Even if you are sure that there was nothing corrupt at work here, that doesn't mean that next time there won't be."

The cort felt that this was fine too, and now that, too, is precedent (albeit somewhat weaker).

I still think that both practices are not great.  It would have been better if Talossa didn't permit lawyers to argue their cases, unanswered, on private forums.  It would have been better if Talossa didn't permit the Government to revisit prior cases (of political allies or anyone else) and reargue them without opposing counsel.  But a lot of things have changed in Talossa in recent years, and these precedents are set.

2.  I'd feel fine ruling whichever I thought the law inclined.

3.  I do not recall his answers in enough detail to say, unfortunately.  I had no objections to his legal philosophy, however.

4.  They would be superseded, I imagine.

[Miestră Schivă, UrN-GC]

For your first example, both the judge and one of the advocates belonged to the same private forum, where the advocate had been presenting arguments and a theory of the case privately, which the judge had been reading.

With respect, I utterly dispute that that was what happened, but I can't prove that you're wrong without opening up confidential discussions. Also:

In my view, this was clearly inappropriate, but the whole Cort ruled very clearly that the practical constraints on our small Talossan community were too great to require recusal.

With respect, again, I believe this is distorting the history. The Cort in this case refused your request for recusal, without if I recall correctly giving a reasoning. You seem to be implying that the Cort did so because the shortage of other available judges, rather than that they disagreed with you that any ex parte communication occurred. Am I reading you correctly?

---

In any case, I want to use this as a springboard to a related but separate follow-up question.

It's very easy to open up conflicts in Talossa, but hard to resolve them. You may recall that the reason I decided to call for a "block" on the readmission of R. Ben Madison to citizenship is that he refused to accept that he had ever told falsehoods about other Talossans for political advantage - an admission without which it was impossible for the rest of us to forgive and forget. An example of this for myself was at one point I described a prominent Talossan who went on to help found the Republic as "a vicious, sycophantic, homophobic thug" - which was at least partly based on a lie I'd been told, and wholly uncharitable even though addressed to someone who was my political opponent at the time.

Conflicts often cannot be resolved without an admission of wrongdoing; and a Cort Justice who cannot admit to error, out of pride, is jurisprudentially dangerous. Thus, can you think of a time, in Talossa preferably but in your outside life if you want, that you were wrong about something; and you publicly admitted you were wrong and accepted the consequences?

I still think that both practices are not great.  It would have been better if Talossa didn't permit lawyers to argue their cases, unanswered, on private forums.

To give an example: if a member of the Free Democrats were to be arguing a case before the Cort, would you argue that they should not be allowed to mention the case in the private Free Democrat forum which is read by two CpI justices? As opposed to the voluntary code of conduct which prevails, i.e. that the Justices will not engage with any such thread?

Actually, there's a good question for you. The Cabinet has a Code of Conduct. Should the CpI have one, and how should it be enforced if so?

Thank you.

[Baron Alexandreu Davinescu]

My account of the case was the one that was publicly presented.  A potential litigant posted on a private forum about a suit currently in a judge's courtroom.  The judge advised him not to "fall for it."  I understand that Txec hadn't actually read the post, and was just reflexively advising the litigant not to agree to anything I might possibly be saying -- problematic in its own right, but beside the point.  Separately, you posted on a different forum about the case and some of your arguments and how difficult it was for you, to which you testified the judge also replied sympathetically.  My contention at the time was that these were inappropriate communications, but the cort found that no impropriety occurred, unanimously and without qualification, "given the small size of Talossa and the inevitable overlapping of people within public offices."  That was the reason given.  So that's that: the rule is set.

"[C]an you think of a time, in Talossa preferably but in your outside life if you want, that you were wrong about something; and you publicly admitted you were wrong and accepted the consequences?"

Sure.  I once passionately argued that MMP would diminish regional power, but I was just flat-out wrong.  Tafial and Luc explained why.  I saw what they were saying, admitted I was wrong, and moved on.  It's not a big deal.

"To give an example: if a member of the Free Democrats were to be arguing a case before the Cort, would you argue that they should not be allowed to mention the case in the private Free Democrat forum which is read by two CpI justices? As opposed to the voluntary code of conduct which prevails, i.e. that the Justices will not engage with any such thread?"

The precedent was set very firmly.  Absent some suit to the purpose with good reason to reconsider, it seems very clear that all of the practices you mention are completely fine under Talossan law.  Indeed, much much more would probably also be fine, as long as they fell within statutory requirements.

"The Cabinet has a Code of Conduct. Should the CpI have one, and how should it be enforced if so?"

There are already rules for judicial behavior in the law.

[Miestră Schivă, UrN-GC]

The precedent was set very firmly.  Absent some suit to the purpose with good reason to reconsider, it seems very clear that all of the practices you mention are completely fine under Talossan law.

This is a nice "lawyers' answer", which reminds me of Republican nominees to the SCOTUS saying they agree that "Roe v. Wade is settled law". The tricky bit is that it won't be settled law if they get half a chance. Couple this with your question about the idea of a CpI code of conduct:

There are already rules for judicial behavior in the law.

Unfortunately Talossawiki is down at the moment so I can't check that out for myself, but I hope that before this questioning is over, you could give us some citations.

Anyway, let's be more precise:

- do you believe that such behaviour as you described above should be excluded in future, either by law or by a CpI code of conduct or some other means? Of course you may answer "what I think on the topic doesn't matter", but I think the people of Talossa deserve to hear what you do think.
- are you going to be content to work with two fellow justices whom you believe to have behaved, shall we say, "in a manner unbecoming a Justice" and gotten away with it?

Thank you.

[Baron Alexandreu Davinescu]

I am not sure what answer I can give you on the question of ex parte communication that will satisfy you.  I intend to abide by precedent, as I have already said many times.  But that doesn't mean I can rule out a future case coming before the cort that addresses the issue, and because of that I can't speak definitively about the future.  The existing rules on the matter in question are G.12.1-3 and D.2.5.1.5-7, so you may look for yourself.  I am not interested in coming up with a code of conduct or anything like that.

I do not agree with the premise of your second question, especially since the quotes make it seem as though you're repeating rather insulting words that I did not, in fact, say.  I am not interested in gratuitously insulting them or anyone else.  And you must already believe that I'll be able to operate on the cort just fine, since you asked me if I'd accept a nomination out of the blue.

[Miestră Schivă, UrN-GC]

Thank you. Your answers raise yet more supplementary questions, but we're running out of time, so this will be my last one.

What is your personal understanding of the legal term stare decisis? How would you apply it in a Cort judgement?

[Baron Alexandreu Davinescu]

That's basically the principle of adhering to precedent.  To apply it, I would look at the underlying legal dilemma in a case and determine if a case had been previously decided on the basis of similar or related principles, then attempt to adhere to the same principles in my ruling.

[Miestră Schivă, UrN-GC]

I believe that answers all the questions I had. Thank you for taking the time and effort to respond. Next batter up.

[Açafat del Val]

Being satisfied that the Committee has finished its business to the best of the abilities, intents and purposes of the Members and the public, I do now invite the Nominee to make a final speech within the next 24 hours.



In addition, I would like to put on the table a motion to adjourn and submit a report to the whole Senäts, as follows:

The Special Committee, convened in order to consider the qualifications of S:reu Alexandreu Davinescu, has considered the nomination thereof to the position of Justice of the Uppermost Cort of Talossa and, having considered such, recommends S:reu Davinescu affirmatively for the said position.

The Chair is entertaining debates, amendments, and votes on the above motion during the next 72 hours, at which time the question will be closed.

Acting individually, I vote affirmatively on the motion to adopt this report, and to recommend confirmation for the nominee, without debate or amendment.

[Baron Alexandreu Davinescu]

Thank you for everyone's time.

[Açafat del Val]

In consideration of the time which has unfortunately passed, but seeing that no other votes were made, I have taken liberty to introduce formally a resolution to the Hopper effectuating the nomination/appointment of S:reu Alexandreu Davinescu to the Uppermost Cort.

https://wittenberg.talossa.com/index.php?topic=342

Many thanks to those who spoke before this Committee and have thereby helped continue a novel but important tradition in Talossa.