The ideal judge is smart and self-possessed yet humble and acutely aware of his or her limitations. She has experience of life and the law but brims with intellectual curiosity and is open to new ideas. She is well-read, well-rounded, flexible but firm. She knows the Constitution inside out. She is calm, thoughtful, analytical, dispassionate, grounded, empathetic, patient, shrewd, organised, fair-minded and has a chess player’s ability to see around corners. She exudes authority and gravitas, yet in private she knows her acute self-doubt makes her better at her job. She is confident, free of vanity. She is a historian, a linguist and has a keen sense of the just outcome. She has a feel for politics, but she keeps her distance from it. Experience has honed her ability to read people, understand their motivations and see an argument from multiple viewpoints at once. She writes with clarity and elegance, reworking paragraphs late into the night to make sure she has them just right.
The ideal judge, in other words, is someone who does not exist.
Knowing that, we try to come up with ways to ensure the best, most suitable people end up on the bench. That process could scarcely have more riding on it: our most senior judges are hugely powerful and influential. We entrust them to make life-and-death decisions and we rely on them to provide an essential counterweight to the powers of the government and the Oireachtas.
Haphazard
Given the importance of judicial selection, however, it's remarkable how little thought has gone into it. Since Independence, the manner in which judges are chosen has been haphazard and opaque. When governments do attempt to codify the process, it's invariably a clumsy response to a political dilemma. For example, the shape of the Judicial Appointments Advisory Board (JAAB), through which most judges have been selected since 1995, was hammered out in a hotel in Co Wicklow by four men – Ruairí Quinn, Brian Cowen, Brendan Howlin and Noel Dempsey – whose brief was to restore trust within the Fianna Fáil-Labour coalition at the height of the Whelehan affair in 1994. Cowen himself admitted later the process was a "charade" designed to fix a "temporary political problem."
The current Government’s own attempt at reform strikes me as being faithful to this dubious tradition. I have no idea how the proposed new system will affect the profile of the judiciary. But I do know that if you were to be asked to come up with a way not to design a piece of legislation, this would be it. Given the importance of the issue, that should cause people a lot of concern.
The Judicial Appointments Commission Bill, which is passing through the Oireachtas this week, is not the result of a comprehensive review or serious debate. It's a hastily cobbled-together fix to ensure that Shane Ross, a polemical columnist and populist politician, will keep Fine Gael in government.
Ross was correct to identify a need for change. The JAAB was in need of an upgrade. Moreover, the judges have not been blameless in all of this. It’s not their place to oppose impending legislation already approved by Cabinet.
Yet the Bill raises serious problems. The first is with the underlying assumption that informs key parts of it: that judges cannot be trusted not to select their friends, or those without merit, for judicial positions. It’s that claim that inspires the proposed lay majority on the new commission and the removal of the Chief Justice as chair of the advisory body. If the claim is true, we have a much bigger problem on our hands. Does it also mean that we cannot be confident in judges’ capacity to administer justice in cases where those self-same lawyers appear before them? We ask judges to sign an oath obliging them to carry out their tasks independently, without fear or favour. We ask them to make decisions about when life begins, when it ends, and what the Constitution says about a whole array of other social and political questions. Is the Government saying they can be trusted on all of this but not trusted to choose good judges?
Political appointments
The second problem is that the Bill plainly won’t achieve what Ross says it will. Last weekend, Ross said “all judges are currently politically appointed” and the Bill would “finally end this rotten system”. If he really believes that, he doesn’t understand his own Bill. Under his system, the commission will send three names to Government. It’s up to the politicians to choose the nominee. If they want, they’ll be able to ignore the commission’s list entirely. That’s what the Constitution says and that’s how it would remain under Ross’s system.
While researching my book on the Supreme Court, I had access to every publicly-available source on judicial appointments in Ireland, including archival material going back to the 1920s. I've also had sight of lots of privately-held documents on the topic and spoken to dozens of people who either selected judges and were selected themselves.
What is striking, when you look at the history of the superior courts since Independence, is how little party-politicisation of the senior judiciary there was. I saw no systematic correlation between the party that chooses a judge and that judge’s decision-making on the bench, and recent academic research comes to the same conclusion.
It would be naive to think political patronage never plays a role in judicial selection. It does, particularly in the lower courts, where ministers and TDs are lobbied intensively by lawyers looking for positions – and often oblige. But that’s the fault of politicians, not the people who sit on JAAB. The Government’s response is to set up a new quango, but the problem could be fixed by addressing JAAB’s glaring weaknesses. For example, the law could be amended so as to force JAAB to recommend three names, perhaps in order of preference. JAAB could be properly resourced, giving it the capacity to interview and properly assess candidates in line with the best public-service recruitment practices.
That’s probably closer to what most Government members want, but it would also loosen Fine Gael’s grip on power. The irony is that a process purportedly aimed at removing politics from judicial appointments is being driven by the oldest political imperative of them all.
Ruadhán Mac Cormaic is an Irish Times journalist and the author of The Supreme Court (Penguin Ireland), which was published in paperback last month