The Supreme Court: where politics and the law meet
There is no evidence that any partisan heritage in judicial appointments affects decision-making
Eighteen per cent of High Court and Supreme Court judges interviewed for a 2004 study believed their political connections had an influence on their appointment. “It would be naive to think politics wouldn’t be a factor, but I think it’s less of a factor nowadays than it was,” says one judge.
It may not be a word that crops up very often when Supreme Court judges convene to decide a case. In some lawyers’ shorthand, it signifies a world from which the judiciary is obliged to stand defiantly aloof. Yet politics is a key part of the dynamic behind every Supreme Court.
The eight judges of the Supreme Court are appointed through a system that remains, despite some minor changes, fundamentally political. A number of the judges on each court invariably have previous connections to the major parties. On the bench, one of the most delicate relationships they must negotiate is with an executive that nominates them, allocates their court resources and sets their pay – all while having a very significant stake in many of the cases that come before the court.
Judges are appointed through a system that begins with the Judicial Appointments Advisory Board (JAAB), which receives applications for each vacancy and presents the government with a list of people who meet a general set of criteria on suitability. However, the Cabinet is not obliged to choose a name on the board’s list, and the body itself does not give any indication of its own order of preference.
“The JAAB is ridiculous,” says one senior counsel, whose view is widely shared. “It’s a fig leaf. It’s a filter to make sure you’re not an axe murderer or a child abuser, but that’s it.”
What happens next differs slightly depending on the government of the day. With District and Circuit Court vacancies, where there may be 60 or more applicants, lobbying of the Minister for Justice by TDs and Senators can be intense, and the circle of Ministers allowed in on deliberations is relatively wide. However for superior court appointments–the High Court and Supreme Court - the discussion is kept within a small circle. Here lobbying takes a more discreet form – a prospective judge may use an intermediary to signal an interest – if it happens at all.
The key players on the government side are the Minister for Justice, who brings the memo to government, and the attorney general. “It’s difficult to see how there could be an appointment to the superior courts without the agreement of the AG (attorney general),” says one politician who has been involved in a number of such appointments. “If he or she was lukewarm or didn’t like the appointment, it’s difficult to see how it could go through.”
Given that the JAAB is not involved where the government decides to promote a judge from a lower court – the route taken by 16 of the 18 Supreme Court judges appointed since the board was established – the government has even more room for manoeuvre for the highest court.
“With superior court appointments the role of the AG is of considerable importance because it was always understood that, ‘they’re your brothers in the courts, you understand them’.”
Some taoisigh show more interest in the process than others. Bertie Ahern and Brian Cowen showed less interest in Supreme Court appointments than John Bruton, for example. In the current Government, Taoiseach Enda Kenny and Tánaiste Eamon Gilmore are involved at the latter stages, but other Ministers are not told until they arrive for the weekly Cabinet meeting.