Bid to impeach Judge Curtin looks a lot like a smokescreen

AN ARGUMENT being put forward to justify the impeachment of Judge Brian Curtin is that circumstances have rendered it impossible for him to continue on the bench.

Another argument if that impeachment is the only way that the Government can terminate the employment of a judge.

Some say the very fact that the allegation of purchasing pornography, even if it was only adult pornography, should be enough for the Oireachtas to conclude that he is no longer fit to sit as a judge.

This kind of thinking is from the realm of Alice in Wonderland. Due process is being sacrificed on the altar of political expediency. Curtin was set up with staged prosecution and he has been made a kind of pariah. His health has been broken.

The ultimate cost - not just personal and financial but also to our judicial and political institutions - could be frightening.

The Republican Party in the United States adopted a similar attitude in their efforts to get rid of a Supreme Court judge in 1970. Richard Nixon was anxious to change the complexion of the Supreme Court. He was not yet two years in the White House but he and his followers were not prepared to wait to fill natural vacancies; they decided to create a vacancy by impeaching Justice William O Douglas, one of the more liberal judges on the bench. Future president Gerald Ford, then Republican leader in the House of Representatives, led the impeachment attempt.

The US constitution stipulates that judges cannot be removed “during good behaviour”. Their supreme court judges are essentially appointed for life because there is no retirement age and they can only be sacked by impeachment.

President Franklin D Roosevelt had appointed Douglas over a quarter of a century earlier.

“Justice Douglas has been criticised for his liberal opinions and because he granted stays of execution to the convicted spies, the Rosenbergs, who stole the atomic bomb for the Soviet Union,” Ford explained.

“Probably I would disagree, were I on the bench, with most of Mr Justice Douglas’s views, such as his defence of the filthy film, I am Curious (Yellow). But a judge’s right to his legal views, assuming they are not improperly influenced or corrupted, is fundamental to our system of justice.”

The US Customs had seized the Swedish film I Am Curious (Yellow) on entering the country and banned it, but the Supreme Court ruled that this infringed the freedom of expression guaranteed under the first amendment of the US constitution.

It was a landmark decision that essentially authorised the distribution of pornography among consenting adults.

I remember as a university student going to see the movie in Dallas just after its release. The place was packed, even though admission cost $5, which would buy a case of beer at the time. We all went there in pursuit of education, of course! The movie was a social documentary with subtitles.

You would see more action on RTÉ any night of the week. After about half an hour people started laughing and walking out. “We paid five bucks to watch this crap!” was the general comment. There wasn’t an erotic moment in the movie. Apparently there was some kind of explicit scene towards the end, but I never met anyone who saw it. Everyone I knew walked out long before the end.

What is an impeachable offence, Ford asked Congress. “The only honest answer,” he said in response to his own question, “is that an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

“When I use a word,” Humpty Dumpty declared in Alice in Wonderland, “it means just what I choose it to mean - neither more nor less.”

Like Humpty Dumpty, Ford was contending that “good” behaviour should mean whatever the members of Congress decided at the time. Ford went on to justify trying to impeach Justice Douglas on the grounds of guilt by association.

The judge had written an article on folk singing for a magazine edited by Ralph Ginzburg, who was jailed in 1966 for sending his magazine Eros through the US mail.

One of the biggest complaints against Eros was that it had an advertisement with a profile of two naked people - a black man and white woman - pressed together in an unrevealing embrace that could be published in any Irish newspaper. What caused offence was that it was a mixed-race couple.

Fr Morton Hill, a Catholic priest, boasted that he persuaded Attorney General Robert Kennedy to indict Ginzburg for distributing “obscene” literature through the mails, a federal crime.

Ginzburg was fined $42,000 and sentenced to five years in jail. The US supreme court upheld the conviction by a five to four majority, with Douglas among the dissenting judges.

Ginzburg was paroled after eight months in jail. He set up a new magazine, Avant Garde, which published an article entitled Appeal of Folk Singing: A Landmark Opinion by Justice William O Douglas.

The magazine paid Douglas $350 for the article.

“The article itself is not pornographic, although it praises the lusty, lurid and risqué along with the social protest of left-wing folk singers,” Ford admitted at the time. “It is a matter of editorial judgment whether it was worth the $350.”

But Ford advocated that Douglas should be impeached for this tenuous association with Ginzburg.

The idea of impeaching a supreme court judge over an article on folk signing was so ludicrous that Ford’s arguments were ridiculed and the impeachment attempt collapsed. It seemed to confirm Lyndon Johnson’s crude assessment of Ford as being so stupid that he couldn’t “fart and chew gum at the same time”.

The argument now that Brian Curtin should be impeached just to get rid of him from the bench deserves the same kind of contempt.

It’s a smoke screen.

Why did the gardaí use an out-of-date search warrant and why did the State go into court with a case that it must have known it could never win? Rumours of the flawed search warrant were circulating in media and legal circles for over a year.

When the gardaí fouled up in Tralee in relation to the Kerry Babies case in the 1980s, a judicial tribunal was held. So why is the conduct of the gardaí in this instance being ignored?

There is another persistent rumour now that the gardaí involved in the raid actually checked with the relevant authorities about the search warrant before conducting the raid.

Were they told to go ahead? If this was the case, surely the Minister for Justice should clarify that matter, as the Garda Síochána is already in enough trouble without being blamed unfairly in this instance. Why was Brian Curtin appointed and why did the then Attorney General Michael McDowell essentially endorse the appointment? Having failed to secure a conviction in what amounted to a show trial, our authorities are compounding the despicable prosecution by turning the Oireachtas into a kangaroo court.

This impeachment is political posturing - a stunt to cover up the lousy judgement that has marred this case from the outset.