Paul Hosford: Judicial appointments system is working just as it was intended to

Paul Hosford: Judicial appointments system is working just as it was intended to

Minister for Justice Helen McEntee has told the Dail that she took advice from Tánaiste Leo Varadkar when appointing Seamus Woulfe to the Supreme Court. Picture: Eamonn Farrell/RollingNews.ie

A flawed process, but the right and defendable outcome.

That was Justice Minister Helen McEntee's summation of the appointment of Seamus Woulfe to the Supreme Court. 

"There is significant room for improvement in the current system," she said, while maintaining that it represented the current "best practice".

Ms McEntee was adamant and strident - this had been done by her and her alone in her position as minister and it was executed properly. The opposition was largely charitable to her personally, saying that she had received a "hospital pass" from her colleagues. 

As a recipient (and sender) of many such a pass, I can assure you it's not an enjoyable place to be, knowing that an opponent will crash into you at full speed at the same time as the ball.

However, Ms McEntee would leave a pass short herself, revealing that she had discussed the appointment with Tánaiste Leo Varadkar. 

This, the opposition said, confirmed what they had suspected - that this was "a stroke", "how Fine Gael does business". 

Here you have the outgoing Taoiseach telling the newly-minted Justice Minister, who has never sat at Cabinet, that the outgoing Attorney General (a long-time Fine Gael member) would be a good fit on the highest court in the land.

Mr Varadkar will likely say that the recommendation was already made, that he was merely passing comment to a colleague about the abilities of a former colleague.

But the scent of a political appointment hangs heavy for the opposition.

All along, the Taoiseach has told us that he is concerned about the separation of powers, ignoring the elephant in that particular room - the question of whether those powers are truly separate when a long-time party activist can go from being the Attorney General and sitting at the Cabinet table to the highest court in the land.

Minister for Justice, Helen McEntee. Picture: Sam Boal / RollingNews.ie
Minister for Justice, Helen McEntee. Picture: Sam Boal / RollingNews.ie

Micheál Martin has used the shield of the Judicial Appointments Advisory Board all throughout this affair, saying that as JAAB made the recommendation to Ms McEntee, he was not in any position to disagree. 

But, as Bríd Smith told the Dáil, JAAB contains two Court Presidents, Chief Justice Frank Clarke of the Supreme Court and Justice George Birmingham, President of the Court of Appeal, who are former Fine Gael candidates - Mr Clarke ran for the party in Seanad elections in the 80s and Mr Birmingham is a former junior minister for the party. 

While there is no suggestion either man showed party bias, the optics to the wider public are poor.

Rise TD Paul Murphy cited a 2011 Irish Independent survey of judges which found that one in three has connections to or was a member of a political party. 

This, he said, is "wildly disproportionate" to the rest of society.

Mr Martin is a man who genuinely believes in the separation of powers. There is no reason to doubt his bona fides on this.

But this entire debacle has played out because those powers have long been intertwined - 16 of 31 Attorneys General have gone on to hold senior judicial positions.

The Government's chief law officer was elevated to the highest court in the land immediately upon being replaced and nobody, even the minister, can say on what criteria he was the best candidate.

The issue here is not that the current system didn't work. It's that it did.

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