Michael Clifford: How did McEntee make her choice?

At no point since Seamus Woulfe was selected for the Supreme Court has the Minister for Justice stated that she sought out advice, writes Michael Clifford
Michael Clifford: How did McEntee make her choice?

Did Minister for Justice, Helen McEntee, put on a blindfold, hold a pin up high in the air and let it drop onto her desk where four of five names were laid out in large lettering? Photo: Gareth Chaney/Collins

How did Helen McEntee decide on her pick for the vacant job on the Supreme Court? 

Maybe she sat at her ministerial desk and put on a blindfold, held a pin up high in the air and let it drop onto her desk where four of five names were laid out in large lettering. He or she who received the pin was the lucky bunny.

Or maybe she lined up in a row little figurines of the applicants and travelled with her index finger across the row. “Eeny, meeny, miny, moe, pick a judge and off we go. If anybody asks, say, how should I know, eeny, meeny, miny moe.” 

This is not to trivialise the task with which Ms McEntee was faced before she selected Seamus Woulfe to take his place on the highest court in the land. It’s just that the scenarios set out above are as plausible as any narrative presented so far by the Minister for Justice.

After a sustained campaign by the opposition to force Ms McEntee to answer questions in an appropriate forum, she has now agreed to do so this afternoon. The most relevant question that she should have to address is what exactly informed her opinion to select Mr Woulfe to fill a vacancy on the Supreme Court?

This is what the Minister for Justice has so far indicated her narrative to be: She took up her role, her first senior ministerial portfolio, on the formation of the government on June 29. Two weeks later on 15 July she recommended to the cabinet the appointment of Mr Woulfe. 

She decided on the candidate for the job without fear or favour and even without seeking advice. In a radio interview of LM/FM earlier this week, the minister laid out how she came to her decision. 

“I considered all the names that came before me,” she told Michael Reade. “There were a number of names.” Repeatedly, she refused to say how many names. 

It has been reported that the only applicant for the job to come through the Judicial Appointments Advisory Board (JAAB) was Mr Woulfe, who was serving on the board as Attorney General when he made the application.

This infers that the only other applicants were judges from lower courts, who do not express interest through the JAAB but write directly to the Attorney General. We now know that at least three judges applied for the job.

So Ms McEntee, who is not a lawyer, selected her choice for the Supreme Court job all on her ownio. At no point since this controversy arose has she stated that she sought out advice.

She couldn’t have approached her party leader for advice, even though he would have been the obvious person to ask. Mr Varadkar has stated that he didn’t know the identity of the judges who applied for the job so he couldn’t have given her the benefit of his experience.

She has not stated anywhere that she sought out, for instance, an off-the-record legal opinion from a senior lawyer, or even another judge. She sat down and thought long thoughts about her choices and finally opted for the odd man out, the only lawyer among three judges in the running.

This failure to consult is deeply worrying. Supreme Court decisions can and do have a major direct impact on the lives of the public. There is no higher court which to appeal a decision in this country. The Supreme Court has also played a serious role in the modernising of the State.

There are state jobs, and even judicial jobs, for which expert advice on selection might not be needed. If, for instance, Ms McEntee, two weeks into her ministerial role, decided off her own bat to appoint a judge of the district court, she could claim that her political experience alone was enough to come to the decision.

Once a candidate is compos mentis and in possession of a modicum of intelligence and plenty of common sense he or she can make a fist of it on the district court bench.

The Supreme Court is a different ballgame. This is Charlie Big Potato stuff in terms of the judiciary. 

To make an appointment without taking any advice on the strengths or weaknesses of particular candidates would be careless in the extreme.

To then, in a state of relative ignorance, stray far from convention in making the appointment might invite the suggestion of bordering on reckless. It is highly unusual for a lawyer to be appointed directly to the Supreme Court. Only two have achieved this in the last 30 years, and neither was a controversial appointment such was their acknowledged ability in the law.

Mr Woulfe has a fine record as a lawyer, but he is not in that league. So why did an inexperienced minister, known for her caution, pick him to serve on the highest court in the land? 

The narrative she has presented thus far simply does not make sense. The opposition parties are correct in demanding a proper explanation. 

It’s a simple but vital matter of accountability and it will be interesting to see how her narrative of the events in question are fleshed out in the Dáil today.

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