The standoff between the Chief Justice Frank Clarke and the Supreme Court’s newest member Séamus Woulfe has pitched brutally into the political domain.
This is bad for politics and more damaging for the judiciary.
Attention is focused on the sharp differences between Clarke and Woulfe, with the former saying the latter should resign from the Supreme Court.
As important a difference is that which exists between Clarke and his predecessor Susan Denham. She was asked by Clarke to review the now notorious Oireachtas golf dinner in Clifden.
She did, and concluded that “Mr Justice Woulfe did nothing involving impropriety such as would justify calls for his resignation from office. Such a step would be unjust and disproportionate.”
Denham went on to say that “it would be open to the Chief Justice to deal with this matter by way of informal resolution”. Clarke is now calling for Woulfe’s resignation.
If Woulfe were a knave, this would be a simple matter. Brazen enough to refuse to resign for malfeasance, he could be handed over by the chief justice to the Oireachtas which, after a troublesome and untried procedure under article 35.4.1 of the Constitution, could execute him by impeachment.
But Woulfe is not a knave. There is ample evidence, however, that this affable man is something of a fool.
On that, Denham is clear too. He “did not consider separately the propriety, or if there would be an appearance of impropriety, for a judge of the Supreme Court to attend a celebratory dinner in a public place while there is a pandemic in the State”.
He could have played his golf with the essentially harmless Oireachtas Golf Society, but instead of going to dinner, he should have had a takeaway and gone home.
That sense of a new judge who had not then, or since, actually sat on the bench having adequate nous about their office, is clear.
It is clearer still in the long transcript of his interview with Susan Denham. It is essentially a private conversation, made public.
Given there were legal advisers present on both sides, and a stenographer, the need for a more buttoned-up style would seem blindingly obvious.
There is ranting about the media which, if over the top, might be taken a little more seriously by some in the fourth estate.
There is criticism of the Taoiseach, which even if thought by a judge and true, should never be heard of from the judiciary.
On this, there is another conflict between Clarke and Woulfe. Was it understood that this transcript and their subsequent correspondence would or would not be published? Woulfe says yes. Clarke says otherwise.
This is important now, because Clarke has moved the goalposts so to speak, and bases his view that Woulfe should resign as much on his behaviour since Clifden as the event itself.
I do not know why Woulfe missed several planned meetings with Clarke. It is clear the man is under acute pressure. But he should have handled himself better and expressed himself more carefully.
There is good reason to think, however, that the chief justice has made a bags of this. He got the review he asked for, but neither he nor any of his Supreme Court colleagues are prepared to live with it.
On the basis of what we know, and Denham listened to the contents of that transcript being delivered live to her, there was nothing, her strong criticisms aside, that would have enabled her to recommend resignation.
If this came to the Workplace Relations Commission, it would be thrown out. That is a rough comparison. A real one is the standard the Oireachtas would have to meet to vote for impeachment.
This is the weakest of test cases for a totally untried procedure. It is a constitutional quagmire. In publishing and be damned, Clarke has moved a judicial matter into the political arena. It is hard to see how that won’t be regretted.
A nub of the issue is that while the Judicial Council Act, 2019, has partly come into force, the conduct committee of the Judicial Council was formally established only in July 2020, and is currently engaged in preliminary preparatory work.
Essentially, Denham informally shadowed what the established but not yet functioning Judicial Council might, but cannot, do.
Should Woulfe continue to refuse to resign, only the nuclear option of impeachment remains. Article 35.4.1 of the Constitution states: “A judge of the Supreme Court, the Court of Appeal, or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.”
There is no incapacity in this instance, so that leaves stated misbehaviour. After Denham, this is at best a slim case. It will take a committee to hold an investigation first.
That, which the judiciary could not manage itself, will ironically require attendance by massed ranks of lawyers.
Assuming such a committee arrives at a ‘stated case’, full impeachment proceedings would then be held in both Houses.
Would those Oireachtas members – and there are many – who have already expressed views on Woulfe recuse themselves? What credibility or validity would the proceedings have if they did not? Would all parties be clear that they would not and could not impose a whip on politicians acting as jurors?
Impeachment may be necessary as an ultimate answer for appalling cases. I do not believe this meets the threshold.
Regardless, judicial failure to deal with the matter means it is a political fireball. The litany now is a long one.
Dara Calleary TD apologised for being at the dinner and resigned as minister for agriculture. Senator Jerry Buttimer apologised and resigned as Leas Cathaoirleach of the Seanad.
The party whip was removed from three Fine Gael senators. Former TD and senator Donie Cassidy resigned from his position as vice-president of Fianna Fáil. Phil Hogan resigned as Ireland’s European Commissioner. Woulfe lives on, in limbo.
In passing the parcel, the chief justice has lit a fire under his own feet. The Supreme Court is a collective.
It is hard to see how it can function with a member no other colleague wants to have there.
Judges spend a lot of time and energy keeping the hand of politicians off their pensions.
They fiercely opposed a non-judge-led appointment process for the judiciary. They preach mediation to litigants coming before them. But they have catastrophically failed to mediate this.
They have demonstrated ineptitude that will, in time, license policy and legislative actions, they most oppose.
There is a gate lodge mentality here. The Supreme Court wants Woulfe to take one for the team after telling him they don’t want him on it. He has become a national inconvenience.
As an attorney general who sat at the cabinet table, he knows the mercilessness that awaits him in Leinster House.
That’s politics. But justice is different and the punishment does not fit the crime.