Noel Whelan: Varadkar and Martin lock horns in dominance fight

New dynamic emerges between parties but not over Whelan appointment

Watching the Dáil exchanges at Leaders’ Questions this week was like one of those scenes in Planet Earth where two male buffalos, hippos or wildebeests fight for dominance in the herd.

One almost expected to hear a whispering David Attenborough voice-over: "The intimidation begins. They assess each other. They paw the ground to show off their strength. When neither backs down there can only be one outcome. They are evenly matched. The fight could go on for a long time. Forward-pointing tusks can stab right through protective blubber. The male skulls are specially reinforced to take a battering."

In this political battle between young buck of a Taoiseach and long-established Opposition leader there can be only one of two outcomes. The incumbent will re-establish his rights or the new arrival will steal his ground.

The battle between Fine Gael and Fianna Fáil has been recast by the change in leadership in the former. Fianna Fáil leader Micheál Martin was correct when he said a new dynamic had emerged between the parties this week, but it is not because of the appointment of former attorney-general Máire Whelan to the Court of Appeal. It is because Leo Varadkar was elected Fine Gael leader and then Taoiseach.

Electoral conflict

Martin and Varadkar are now involved in a struggle for dominance. There will be much roaring and pawing of the ground between now and the next election. If they both insist on standing their ground it will all escalate to full electoral conflict sooner rather than later.

In the meantime we continue to endure weak new politics. It was disappointing again this week to see so much parliamentary time and political discourse absorbed by process questions which bear so little impact on real lives.

The big issues of housing, mental-health services, the health services generally and the Brexit threat all play second fiddle to political theatre, this time about a judicial appointment already made.

As Senator Martin Conway is reported to have said, Enda Kenny left Varadkar a political stink bomb. The fact that Whelan's appointment to the Court of Appeal is only the second judicial appointment made in 20 years outside the Judicial Appointments Advisory Board process makes it politically controversial but does not make it legally unsound.

Suggestions that the Government circumvented the law in making this appointment do not stand up. The Government circumvented the board but the law that established the board enabled it to do so and the Constitution entitles it to do so. Section 18(3) of the Court and Court Officers Act 1995 provides that if the Attorney-General applies for a position through the board he or she must absent himself or herself from the relevant meeting it does not exclude him or her from being considered for judicial appointment outside the board process like anybody else.

Informal process

It was interesting, in passing, to hear this week that an informal process had been put in place requiring sitting High Court judges interested in promotion to write expressing their interest. One would have thought every High Court judge was a contender for such promotion. None of them was likely to refuse it if offered. Indeed, it could be said that those more likely to actively apply for promotion are less temperamentally suited to an appeal court.

The personalised nature of the some of the criticisms of the newly-appointed Court of Appeal judge was also disappointing. This growing tendency to attack or disparage persons who are not in the House or who are otherwise not in a position to defend themselves further diminishes our legislature. It amounts effectively to parliamentary trolling. It reflects an increased aggressiveness in public debate generally and a pandering to populism.

It has a harder edge in the current Dáil because each of the parties is particularly frustrated with its position. Fine Gael is in government but not really in power. They resent their reliance on Fianna Fáil, which finds itself trapped between having to ensure confidence in the Government and feeling the need to more than match the rest of the Opposition, and Sinn Féin in particular, in its outrage.

After its collapse in the last general election the Labour Party is not only diminished but fighting for relevance. The other Opposition parties and Independents suffer the natural frustrations of being in Opposition, while some of them deliberately seek to thrive on fostering discord and protest. Meanwhile, all are frustrated that they have so little legislation of substance to debate. The power vacuum, defying physics, makes all this political noise so much louder.

Every criticism and attack must, it seems, be framed in ever more colourful language and delivered in ever more aggressive tones because politicians are competing for attention in a more crowded and more superficial media environment.

We are going through a very unhealthy phase in our politics.