Supreme Court vacancy may not be filled

Analysis: Uncertainty surrounds appointment of Adrian Hardiman’s replacement

 Supreme Court judges, the  President of the High Court and the President of the Court of Appeal during a special sitting to commemorate the late Mr Justice Adrian Hardiman at the Supreme Court, Dublin. Photograph: Collins Courts

Supreme Court judges, the President of the High Court and the President of the Court of Appeal during a special sitting to commemorate the late Mr Justice Adrian Hardiman at the Supreme Court, Dublin. Photograph: Collins Courts

 

With the sudden death of Mr Justice Adrian Hardiman, the Supreme Court has lost an outstanding legal mind and an accomplished jurist.

Given the present political uncertainty, a new appointment to the court could be many months away.

If it does happen, it is likely to come from among members of the Court of Appeal, but there is a possibility it may not happen at all.

Unlike newly appointed judges, serving judges being elevated to higher courts do not need to go through the Judicial Appointments Advisory Board.

Even if they did, the final decision on appointment would still be made by the Taoiseach, with the Tánaiste, Minister for Justice and Attorney General.

The outgoing Government’s elevations included barrister and former Fine Gael candidate Colm Mac Eochaidh and former Labour Party legal adviser and councillor Richard Humphreys, who both went to the High Court.

Only the Labour Party, as part of its manifesto, made any suggestion that the current process of appointment might be altered.

So in the formation of the next government, as part of any deal, it is likely agreement will be reached on how judicial posts will be decided.

Potential candidates

When the time comes to choose a new Supreme Court judge, it is likely potential candidates will come from the Court of Appeal.

Promotion within the judicial system tends to be hierarchical, though there are exceptions, notably Mr Justice Adrian Hardiman himself, who went directly from senior council to the Supreme Court.

Of the nine members of the Court of Appeal, Mr Justice Gerard Hogan’s name has been mentioned most frequently as a possible candidate.

Appointed to the High Court in 2010 and the Court of Appeal in 2014, the judge, co-author of Kelly’s Constitutional Law, was a leading constitutional lawyer and a law lecturer at Trinity College Dublin until 2007.

One source described him as “one of the finest constitutional minds in the country”; another pointed to his reputation for hard work.

In terms of politics, he had connections with the now defunct Progressive Democrats, which may or may not be to his advantage.

Tipped as possibility

The highly capable Ms Justice Mary Finlay Geoghegan has also been tipped as a possibility.

Appointed to the High Court in 2002, she was elevated to the Court of Appeal when it was set up in 2014.

She serves on the board of the Mater hospital and has acted on a variety of boards and committees.

The daughter of Tom Finlay, who served as chief justice and as a Fine Gael TD, she is also one of Ireland’s ad-hoc judges to the European Court of Human Rights.

Though a less-obvious candidate, the hardworking Mr Justice Michael Peart has also been suggested.

In 2002, he was the first solicitor to be appointed to the High Court and was subsequently the first solicitor on the Court of Appeal.

His elevation could help address the frequently complained of deficit in solicitors among senior judiciary.

Whatever government is in power, there is a distinct possibility there will be no new appointment.

Since the establishment of the Court of Appeal, the Supreme Court’s backlog has been steadily diminishing and its new cases are considerably fewer.

Last year, in its first full year of operation under the new regime, it tackled more than 400 legacy cases, and received only 88 new applications for leave to appeal.

A decision may be made to allow the Supreme Court, now with nine judges, to reduce to eight or seven.

Prospective candidates may have to wait for promotion until after the retirement of Chief Justice Mrs Justice Susan Denham and Ms Justice Mary Laffoy, due in 2017.