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.
