Imagine, within days of taking up a new job at the head of a busy bureaucracy, you are given a list of more than 50 names and told to choose one to be appointed as a heart surgeon.
Everyone wants a quick decision. You know none of the candidates, and even less about cardiology.
Imagine that, in negotiating this task, with no criteria to guide you, you decide not to consult with anyone – not your staff, not your managerial colleagues and not the hospital where the vacancy has arisen.
Your boss, the man who just appointed you, is not a medic either, but one day, just as you’re about to weigh up the candidates, he mentions in passing that he knows one of the applicants – the least experienced of the 50 – and thinks he’d make a good heart surgeon.
To call the ad hoc sequence by which judges are selected a 'process' is putting it a bit high
A few days later, you opt for that very candidate. At the next meeting of the leadership team – the group that formally makes the appointment – you present just the one name. There is no discussion; your colleagues nod it through and move onto the next item. Within two weeks, your new surgeon is scrubbing up.
This, by the Government's own account, is how Séamus Woulfe became a Supreme Court judge.
In the Dáil on Thursday, Minister for Justice Helen McEntee, who recommended Woulfe at a July Cabinet meeting, said repeatedly that the nomination followed “the process”. To call the ad hoc sequence by which judges are selected a “process” is putting it a bit high, but certainly there was nothing illegal or unconstitutional about it.
Governments have wide discretion to choose whoever they want to sit on the bench. McEntee is also correct in saying it is the norm for a minister to recommend just one name for each vacancy, though on a number of occasions, even as recently as a few years ago, according to several sources, the names of unsuccessful applicants have been shared verbally at Cabinet.
McEntee lack of discussion
The Government broke with usual practice in two ways. First, it overlooked all serving judges – the pool from which Supreme Court judges are most often chosen – in favour of a barrister. That has only happened twice in the last 25 years, so for it to occur in the case of a longtime Fine Gael activist who had just been replaced as attorney general was bound to raise questions.
Second, McEntee, by her own admission, did not discuss the candidates with anyone. That's virtually unheard of. In interviews with more than 25 people who were involved in judicial selection over the past 30 years, all described a similar set of discussions involving four people: taoiseach, tánaiste, minister for justice and attorney general. The dynamic shifts a little from government to government. As taoiseach, John Bruton had more interest in judicial appointments than Bertie Ahern or Enda Kenny.
In some cases the deliberations would go on for weeks and involve different members of the quartet drafting separate shortlists to see where they could agree. Occasionally the president of the relevant court would have an input, though there have always been mixed views among politicians on whether that is appropriate. (“It’s none of their f***ing business,” one former minister said.)
The only instances in which this type of high-level discussion did not take place in the past were when a decision had been made at the outset to appoint a particular individual. That’s not necessarily a bad thing: a court may have an obvious specific gap in expertise that needs to be filled, or a star candidate may quickly win cross-party backing.
In this case, however, the Government maintains that Woulfe’s appointment was never a done deal. When asked about this explanation, some of the ex-office holders, including representatives of all the major parties, gave colourful responses, with “surprising”, “bizarre” and “not credible” among the publishable ones.
Cause to squirm
The former attorney general's selection has come under scrutiny because of his attendance at the Oireachtas Golf Society dinner in August and his handling of the ensuing controversy.
But while the Government's modus operandi in selecting him was at best unorthodox, every government would squirm if all their judicial nominations were put under a microscope in this way.
Political patronage plays a role, particularly in the lower courts, where ministers and TDs are lobbied intensively by lawyers looking for positions
The only attempt to introduce structure to the process – the creation of the Judicial Appointments Advisory Board (JAAB) in 1995 – was prompted by a political crisis facing the then Fianna Fáil/Labour coalition, which came close to collapse over the so-called Whelehan affair, a row over the nomination of the then attorney general Harry Whelehan as president of the High Court.
But even those who have sat on the JAAB – the body through which solicitors and barristers apply for judicial positions – see it as a fig leaf. It can send multiple names to government, it does not interview applicants and government can – and frequently does – ignore its suggestions. As one senior counsel put it, the JAAB will exclude you if you’re “an axe-murderer . . . but that’s it.”
The most common criticism of judicial appointments is that they are political. By definition that’s true: the Constitution gives politicians the prerogative. Whether they are party-political is less clear-cut. Political patronage plays a role, particularly in the lower courts, where ministers and TDs are lobbied intensively by lawyers looking for positions. Solicitors contact their local TDs who then convey the message up the chain. Candidates’ election agents look for preferment on the basis of their service to the party. Family members of would-be judges turn up at hurling matches where, by pure serendipity, they bump into a TD or minister.
But in general, the higher you go through the court system, evidence suggests, the less party connections count. The current Supreme Court has a majority of members who have no party links.
Two of those who were party members – Frank Clarke and John Mac Menamin, both one-time Fine Gael activists – were made judges by Fianna Fáil-led governments. If anything, research of the process suggests, personal connections are more influential than party affiliation. Jennifer Carroll MacNeill, who interviewed judges and politicians for her 2016 book The Politics of Judicial Selection in Ireland and is now a Fine Gael TD, came to the same conclusion.
It's even harder to find a correlation between the party that appointed a judge and that judge's decision-making record on the bench. In a 2016 study of all Supreme Court judgments from 1963 to 2006, three DCU academics – Robert Elgie, Adam McAuley and Eoin O'Malley – tested the hypothesis but found that judicial voting patterns were a mix of overlapping lines and shifting blocs that varied with each case.
Few would argue with McEntee when she says the establishment and maintenance of a robust, independent judiciary has been one of the successes of the modern Irish State.
Nor would any informed analyst disagree that the system needs an overhaul that would bring more rigour and transparency to it. Because as long as the appointments process remains as opaque and defective as it is, governments will continue to find new ways to inflict damage on themselves and on the judiciary.