Senäte hearing re Istefan Perþonest nomination to the Uppermost Cort

[esbornatfiglheu]

Thank you, S:reu Perþonest, for your answer.

I think of UC Justice positions as less political in some ways, and more theological.  The Justice looks at the text, draws upon their learning, and writes an opinion that has all of the binding force of law simply because they are charged with declaring what the law means.  This is not something to take lightly, even in a small and young nation like Talossa.

You currently execute an important office in the Civil Service, Burgermeister of Inland Revenue.  By both tradition and, to a lesser degree, statute, the Justices of the UC step back from Talossan political life a bit.  Can you speak to any potential conflicts between these two positions?  Or do you feel they are ultimately compatible with one another?

Following from that, what do you see as the UC Justice's place in our wider Talossan society, given the step back from politics that is customarily taken?

[Istefan Perþonest]

The ideal of the Civil Service is that it nonpolitically serves Talossa in administering the state under the direction of the Government of the day, and I believe my service as Burgermeister of Inland Revenue has exemplified that standard. I think my role as such is, indeed, fundamentally compatible with a role on the Uppermost Cort, at least under current Talossan conditions.

Now, I do acknowledge that I was involved in policy and politics early in my tenure as Burgermeister, but that was in my then-role of Minister of Finance. Since my (stormy) resignation from that office in 2014, the closest I believe I've come to national politics is giving advice to the Government when that advice has been requested. The lesson I took from that experience, after I had some time to clear my head, was that I'm not temperamentally suited to a political role in Talossa. I'll note that not only have I not held national political office since (not even a seat in the Cosa), but I've also not been a member of any party, and to my recollection have largely refrained from even expressing political opinions. I have, I feel, already stepped back from Talossan politics. (Inherent in saying that is that I believe my performance in the other offices I've held in the last six years has been consistent with having stepped back from politics. Whether as Cunstaval of Fiova, Arvitieir Prima of Benito, Electoral Commissioner, or even Maestro of Benito, I believe I've largely avoided politics.)

In a perfect world, I would drop all my other offices upon becoming a Justice, to eliminate as many potential conflicts as possible. But in a perfect world, there'd be a bunch of active and qualified candidates to take over them all. As it is, I don't currently plan to resign any of them.

On the more general point, I don't have a lot of insight, I'm afraid. Given how central political activity is to Talossa, being both active and apolitical are in tension with each other, and thus there's a marked historical tendency for Justices to drift away from paying attention. I don't have a good idea as to how to square that circle in general, even if it seems like I've done it in my personal case.

[esbornatfiglheu]

 Thank you.

Estimat Mencei, I have no further questions.

[Açafat del Val]

So that the nominee may answer the questions asked of him by the Senator from Benito, the same shall continue to have speaking time through the end of Thursday, October 22nd.

The Senator from Vuode shall have speaking time (to ask questions and receive answers) from Friday, October 21st, through Monday the 26th.

(Sorry, should have mentioned.  I only request time to speak and don't intend to question the nominee. I will not need all those days.  The Friday alone will suffice.)

Does the Senator from Vuode wish to speak? If not within the next 24 hours, then I will commence to ask questions of the nominee.

On that note: does anyone else wish to request speaking time?

[Açafat del Val]

S:reu Perþonest, thank you kindly for participating wholeheartedly in this hearing.

I do have other questions, but foremost I would like to ask: how should the Uppermost Cort endeavor to increase overall engagement, education, and enthusiasm with the judiciary itself and the law more generally? Are you concerned, if at all, that too few Talossans appreciate our unique legal system?

On that note: what would be your legal analysis in the semi-recent criminal case, re: Legality of non-Talossan Name? I would like to hear not only whether you think that the court of original jurisdiction reached a sound conclusion (and why it did or did not), but also whether you worry that it set(s) a bad legal precedent.

Lastly for this round: what is your favorite flavor of ice cream, and what is your most enjoyed activity during the winter months?

[Açafat del Val]

My broad judicial philosophy is textualism; that the actual, ordinary, public meaning of the words should prevail. (Fortunately, in Talossa, our laws are not so old as to raise the question of linguistic drift.) This itself is based on two principles.

The first is democratic legitimacy. What, exactly, was the intent of each and every one of the legislators at the time they voted for the legislation is impossible to know, and so any version of reading legislative intent or considering the question of the problem the law was intended to address inherently privileges some votes over others. The actual language they voted all for, however, is unambiguously the language they all chose to enact. And when an unelected judge substitutes his sense of justice for what the law says, he is usurping power from the representatives that made the law; and here it is a worse usurpation of democracy, because while the legislature can change the intent by passing a new law, they certainly can't change the judge's sense of justice the same way. The defect of democracy is that it never can implement uncompromised justice; the glory is that it is far more amenable to correction than any other system.

The second reason is the principle of fair notice. Any individual person should be held to adhering only to the law as written, rather than being expected to know the intent of those who wrote it or of the sense of justice of the judge. The "crime of analogy" seen in Soviet and Imperial Chinese law creates a structurally unjust society in a way that no unjust but published statute possibly can.

(The concept of lapsus linguae still applies; obvious human error should be treated as such. I grant that my predicates are vague enough that there's a sorites paradox in drawing the line between noticing drafting errors and trying to read intent.)

Now, how does all this impersonal theoretical principle rubber hit the road when you reach the personal end of small-group dynamics and the emotions? I think, ultimately, it works better for a judge to adhere to the principle than to try to directly address the dynamics. While I think it is potentially worthwhile for a judge to promote non-public discussion between the parties to reach a settlement friendlier to the dynamics, if there is no settlement, the best way to rule is, in fact, impersonally. A party that loses what it think it deserved is going to be all the more incensed if it thinks it was a case of the judge personally siding against the party, to the detriment of the group dynamics, and every millimeter by which the judge deviates from the impersonal application of the law is the more justification for feeling so.

Of course, other people will disagree with me on pretty much all those points, and I can see their arguments for doing so, even if they do not persuade me. If any of you find my approach truly unacceptable, I urge you to vote against my appointment, because after decades of amateur legal philosophizing it is very unlikely that I will change my mind.

Upon reading this in further detail, I am curious about a few details.

It seems incongruent to suggest on the one hand that an unelected judge should not make law, and on the other hand that only an unelected judge can determine what the intent of the authors was or is.

My question here is: Do you see the irony in those assertions, S:reu Perþonest? Please explain your answer thoroughly, as to why these statements are or are not mutually exclusive.

As a matter of dialogue, I would like to offer my own answer succinctly: Authors cannot possibly predict the interpretation of their own language, and therefore their intent is not somehow perfectly clear or obvious. As a matter of fact, just in Talossa, we recently amended the Organic Law because the author of a section - the King, no less - insisted adamantly that the section was being misinterpreted, even if it seemed plain to everyone else that it meant something different than the King said it did.

Follow-up question, then: What if your own interpretation of a law, particularly while in your official capacity as a judge, comes at odds with the authors' own intent? What if the language says something so obviously to you, but the author testifies that the language means something else? Would you then defer to the author's intent? If so, can you really call yourself a textualist?; and if not, how do you reconcile the hypocrisy?

[Istefan Perþonest]

My apologies for the long time it's taken me to reply to your questions, Senator del Val. My parents and I were all affected by an unusually strong cold (and in my and my mother's cases, a compounding sinus infection) that, coinciding with El Paso being a COVID-19 hotspot, seriously disrupted our normal activities, which we've slowly been getting back into order. (We're fine.)

Now, to address your questions:

I do have other questions, but foremost I would like to ask: how should the Uppermost Cort endeavor to increase overall engagement, education, and enthusiasm with the judiciary itself and the law more generally? Are you concerned, if at all, that too few Talossans appreciate our unique legal system?

I think the ideal, and of course impossible, situation for any society is that both law and justice be so clear and so adhered to by every citizen that there is never any need to have a judge. Accordingly, the ideal Talossa would have little engagement or enthusiasm with the judiciary at all, it being a forgotten and dusty corner of the Organic Law with no relevance. However, we are quite unlikely to ever reach that ideal.

In the world we have, enthusiasm and engagement assist in necessary tasks, and education is vital to them. And the Cort absolutely needs to take the matter of education in-hand, particularly as regards to its supervision of the National Bar. I expect that as soon as it does, we'll see any number of people engage enthusiastically with that opportunity, and grow in appreciation of the Talossan legal system. If I become a member of the Cort, I expect I'll be in a position to get the ball rolling on educational initiatives.

On that note: what would be your legal analysis in the semi-recent criminal case, re: Legality of non-Talossan Name? I would like to hear not only whether you think that the court of original jurisdiction reached a sound conclusion (and why it did or did not), but also whether you worry that it set(s) a bad legal precedent.

As it is entirely possible this specific case as a precedent will come up in a case before the Uppermost Cort, particularly as you specifically asked about its nature as a precedent, in accordance with the American Bar Association's Canon 5A(3)(d)(i) of the Model Code of Judicial Conduct, and the so-called "Ginsburg Rule" regarding giving "no hints, no forecasts, no previews" about how a nominee would rule as a judge in a particular case, I respectfully decline to answer this question.

I grant that those are American rather than Talossan principles on the conduct of judicial nominees, and are not binding as law even for Americans, but I think they make a good ethical guideline.

Lastly for this round: what is your favorite flavor of ice cream, and what is your most enjoyed activity during the winter months?

My favorite flavor of ice cream varies according to my mood, but is almost always either Cookies 'n' Cream or Moose Tracks. (Variations on those themes, like a Dairy Queen Blizzard/Sonic Blast made with either Oreo pieces or with peanut butter cups, also work.)

Winter conditions in El Paso are usually much like late fall/early spring where I grew up (Detroit), except rather drier, so my mind sort of glitches at this. While El Paso has what the locals call "winter months", it's generally a period where it's merely too cold to engage in "summer" activities (like swimming outdoors), rather than a period with its own winter activities. Accumulated snowfall, for example, is a one-week-every-seven-years sort of thing; the average daily low temperature in January is still above freezing.  And reaching back decades to my youth would ignore that I'm a rather different person now than I was then.

However, after writing all that, one definitely winter-specific activity that I do engage in is driving around at night to look at displays of Christmas lights and luminaria displays.

Upon reading this in further detail, I am curious about a few details.

It seems incongruent to suggest on the one hand that an unelected judge should not make law, and on the other hand that only an unelected judge can determine what the intent of the authors was or is.

My question here is: Do you see the irony in those assertions, S:reu Perþonest? Please explain your answer thoroughly, as to why these statements are or are not mutually exclusive.

Follow-up question, then: What if your own interpretation of a law, particularly while in your official capacity as a judge, comes at odds with the authors' own intent? What if the language says something so obviously to you, but the author testifies that the language means something else? Would you then defer to the author's intent? If so, can you really call yourself a textualist?; and if not, how do you reconcile the hypocrisy?

To begin with, I must say that I do not assert that a judge is in the business of determining what the intent of the authors was. Rather, I assert that determining what the intent of the authors was is entirely outside what a judge should be doing.

The first reason, going back to the matter of democratic principle, is that the authors of a law did not enact the law. Insofar as the intent of the lawmakers matters, in a democracy it is not the intent of the authors that needs to be considered, but the joint intent of all the persons who enacted the law. In the case of Talossan statute law, the Ziu enacted the law, and in the case of the Organic Law, the Ziu and the voters in the referendum enacted the law. It is undemocratic to privilege the intent of the authors of the text over the intent of the representatives of the people, and even the people themselves, who made that text into law. That, then, becomes the core of the democratic reason for dealing with the text; most of the people who actually enacted the law did so based on reading the text and choosing to ratify it, and the best evidence of what they intended by their ratification is the text itself.

The second reason, the principle of fair notice, discourages trying to divine the intent of even those who enacted the law, because the text is written down for people to read and comply with, while the intent of the legislators is not. People can read, understand, and calibrate their conduct to comply with the written law, but face obvious difficulties in doing so with "legislative intent". This is especially true since an unwritten intent cannot be verified to be unchanged; what a legislature intended to enact at the time and what the legislators currently think should be enacted are not necessarily the same thing, even when the legislators honestly believe (due to the workings of human memory) that their intent is unchanged. This principle is one of justice even more fundamental than democracy; a place where you can be punished for violations of an unknowable or ex post facto law is a worse tyranny than one where you can only be punished for clear violations of clearly known laws, even if the former laws are made democratically and the latter's aren't.

Accordingly, my response to an author of a given law that says his intent was other than the meaning I think obvious is, "Then you should amend the law to more clearly express your intent; I judge what the law is, not what you meant it to be." I do not believe, in so doing, I am engaged in any hypocrisy.

As to whether only an unelected judge can say what the law is, well, the judicial power is specifically the power to determine what the law means and apply it in a case, so that was determined by the choice to vest the judicial power in unelected judges in the Organic Law. It would be possible to make other arrangements; for example, it would be possible to make the author of a law the judge of what a law means. While I think that would work poorly in practice for several reasons, in any case it is not the arrangement that Talossans have chosen with the Organic Law we have. Since the judicial power is vested in the unelected Cort pü Inalt, it is necessarily the role of unelected Justices to determine the meaning of the law in applying it to a case.

[GV]

I've been so busy this month with Archives work I have neglected this hearing.

If there are no objections, I'd like to cast my vote Për for sending this onto the Ziu and open the floor for voting to end on 28 December to allow time for the Seneschal to properly Clark this thing.

GV, Mencei