Máire Whelan appointment is Taoiseach’s first problem

Enda Kenny paid Leo Varadkar the compliment of nominating him to be his successor as taoiseach on Wednesday, but he has also left him with the first political problem of his administration.

The nomination of the outgoing Attorney General Máire Whelan as a judge of the Court of Appeal was, I am told, the final item on the final agenda of the outgoing cabinet on Tuesday. By Wednesday, it was a political controversy. Micheál Martin raised the circumstances of the nomination in the Dáil during the debate on Varadkar’s nomination, drawing an obvious link with one of the outgoing administration’s other final acts: the reopening of a Garda station in Minister for Transport and Independent Alliance TD Shane Ross’s constituency.

It is a problem that is getting stickier by the day. It is to be raised at Cabinet next week, and also in the Dáil

This gave rise to some highly entertaining indignation from Ross about Fianna Fáil’s record on State appointments, and its willingness to cuts deals on such matters. All you can say is that they both have a point. The exact score in hypocrisy on either side here is something which can be calculated in due course, but for now the central issue is Whelan’s appointment to the judiciary. That is where the focus remains.

Sticky problem

It is a problem that is getting stickier by the day. It is to be raised at Cabinet next week, and also in the Dáil. The Independent Alliance is understood to be angry; this is confusing, as its members appear to be angry at a decision they made themselves. But it adds fuel to the fire.

Pat Leahy: Power shifts to a new generation in Fine Gael

---

Pat Leahy: Varadkar’s reshuffle may lead to his first mistakes

---

Omens not good for Fianna Fáil if Varadkar succeeds Kenny

---

Varadkar best positioned in this anti-political age

---

Political controversies sometimes wane when political and media attention just drifts elsewhere. But for now, at least, this will not just go away. The Government’s strategy of hunkering down and refusing to answer any questions looks unsustainable. It overshadows Varadkar’s first weekend as Taoiseach.

Fianna Fáil is turning up the heat; yesterday Niall Collins and Jim O'Callaghan both said that Ms Whelan should turn down the appointment (she is nominated by the Government, but not yet formally appointed by the President) and apply - should she wish - through the normal channels of the Judicial Appointments Advisory Board.

The approved response from Government Buildings, repeated throughout the system and by every minister who has a microphone stuck in their face, is that “nobody was more qualified than Máire Whelan for this role”.

Aside altogether from its shortcomings as a political defence, the substance of that view is at least open to discussion.

It is certainly true that nobody was more qualified than Whelan if hers was the only name considered for the nomination, which appears to have been the case. But why was that? The Irish Times has reported that three High Court judges indicated their interest in the role. But under a system set up by, ahem, Máire Whelan, judges (who do not apply through the appointments board) may indicate their interest in judicial vacancies to the Attorney General.

Suitability for role

Were Ministers told any of this before they waved it through? There’s no answer on any of this from Government Buildings.

Her record as Attorney General has been widely praised by the Ministers she advised, but there were a number of conspicuous mistakes

What of Whelan's qualifications independent of all this? Well, consider the job first of all. All the other judges of the Court of Appeal were previously trial judges, almost all of them in the High Court. It is not unheard of for a practising lawyer to be appointed directly to an appellate court, but it is unusual. It has only happened on a couple of occasions in recent times and those lawyers who were elevated directly (to the Supreme Court) were recognised as outstanding legal brains. Both the late Adrian Hardiman and current Supreme Court judge Donal O'Donnell were acknowledged by their peers as among the very best practising lawyers at the Bar. That could not be fairly said of Máire Whelan.

Her record as Attorney General has been widely praised by the Ministers she advised, but there were a number of conspicuous mistakes. She approved a Government leaflet about the children's referendum which fell foul of a Supreme Court judgment. She failed to spot that the terms of reference for an inquiry into the sale of Siteserv were inadequate.

But a greater concern than any of these was her performance before the Fennelly Commission, which was investigating the unauthorised recording of some phone calls at Garda stations and also the political fallout from this – which led to the sudden resignation of former Garda commissioner Martin Callinan.

Behaviour criticised

Whelan’s behaviour was criticised by the judge in his report, but what really stands out was the very odd fact of her changing her sworn evidence to the commission a year after she had given it. Read the judge’s report and his polite incredulity at this leaps off the page.

But Whelan’s evidence also had the effect of bolstering the position of the then taoiseach, Enda Kenny, who faced accusations he had illegally fired the Garda commissioner. On Tuesday, as almost his last act in power, Kenny saw to her appointment to the State’s second-highest court.

Even minds less habitually suspicious that the ones around Leinster House might wonder at a connection between these two events.

So Leo Varadkar is faced with his first knotty political problem, days into his premiership. He could batten down the hatches and wait for it to go away, trusting that other events will take its place in the political and media consciousness. Much as we in the media may not like it, there is a time for that in politics and statecraft. That would certainly be the approach Enda Kenny would take.

Or Varadkar could rescind the appointment made in such haste, and reopen the process. His decision will tell us a good deal about the character of the administration he has just begun to lead.