Several High Court judges applied for a vacant position on the Court of Appeal which was awarded to Attorney General Márie Whelan on Tuesday.
Ms Whelan, who has served as Attorney General for the past six years, was appointed to the position after the Judicial Appointments Advisory Board (JAAB) told the Minister for Justice that it was not in a position to recommend anyone for the vacancy.
Outgoing minister for justice Frances Fitzgerald had sought a list of candidates from the JAAB that would be suitable to fill the Court of Appeal vacancy.
“However JAAB reported . . . that it was not in a position to recommend a person for appointment to the vacancy,” said a spokesman for the Department of Justice.
The Government then nominated Ms Whelan “pursuant to its prerogative under Article 13.9 of the Constitution to advise the President on appointments to judicial office,” he added.
JAAB is responsible for recommending solicitors and barristers to the cabinet for judicial appointments. Sitting judges do not apply through JAAB but instead can go through a separate process that involves writing to the Attorney General to indicate their interest in a more senior position.
The Irish Times understands that at least three High Court judges have recently written to the Attorney General indicating they would like to be appointed to the vacancy left by Mr Justice Garrett Sheehan.
Ms Whelan is highly regarded in legal circles but the circumstances of her appointment have caused some consternation.
The Department of Justice has refused to say how many people applied for the vacant position, citing the confidentiality of the judicial appointments process under the Court and Court Officers Act 1995.
A spokesman also refused to say if Ms Whelan recused herself from the selection process.
It is understood there was a reluctance among barristers and solicitors to apply through JAAB for the vacant position because it was assumed the position would be awarded to a senior judge.
The intensive work rate of Court of Appeal judges was also a factor. Some judges regularly work 12-hour days because of the large caseload of the court.
Additionally most lawyers senior enough to be considered qualified for the position would earn less money on the bench than they would as a practitioner.
Unprecedented
The refusal of JAAB to recommend anyone for the vacancy is unprecedented. One former member of JAAB described to The Irish Times being "gobsmacked" the board couldn't put forward a single name.
Ken Murphy, director general of the Law Society, said he would not comment on Ms Whelan’s new appointment. However, he remarked: “There used to be two good reasons for a practising solicitor or barrister to consider seeking the career change of becoming a judge – the prestige and pension.
“But since the controversy and referendum on judicial pay, neither the prestige nor the pension are quite what they used to be. But the pressure on judges has increased greatly. The attractiveness of the judicial career has diminished a little as a result.”
However, Mr Murphy said the quality of the Irish judiciary remained extremely high.
A referendum to reduce the constitutional bar on reducing judge’s pay was passed in 2011.
