Alan Ruddock with some thoughts on the discreet way the Republic chooses its judges, contrasting it with the complexity and intense public interest in the selection of judges in the US. The sheer public bafflement and panic on the backbenches recently when a Supreme Court ruling struck down a 130 year old law of statutory rape, indicates a degree of public misunderstanding of the proper relationship between the judiciary and the legislature.
In Ireland, though, we barely notice when a Supreme Court judge is appointed and rarely, if ever, discuss the relative merits of the potential candidates – largely because we do not even know who they are. The Taoiseach of the day makes his choice, the President makes the appointment and that is that: no debate, no analysis, no examination. Even when the appointment has been made, the media’s interest is muted and the Dail’s involvement is non-existent throughout the process.
When Nicholas Kearns was elevated to the Supreme Court he merited a brief mention in the papers, but little more. At the end of a short biographical note in the Irish Times, we were told that “He is married to Eleanor, and they have four sons. He has been associated with the Progressive Democrats”.
A reference to a judge’s political affiliations, however tenuous, is thrown in at the end without explanation or justification.
It should not matter what way a judge votes in the privacy of the polling booth, and it certainly should not play a part in his or her promotion to high office, yet in Ireland it does. All judicial appointments are political affairs and there is no proper overseeing of how a judge is selected. The taoiseach chooses, the president appoints and the judge sits on the bench until he retires.
Supreme Court judges are critical players in our democracy, the arbiters of our constitution and the final court of appeal. The composition of that court matters to each one of us, and we deserve the right to explore the character and qualities of each candidate before they are given a job from which they will never be fired.
Their independence is vital to how they are perceived, and vital to their roles. As the European Judges Charter states plainly: “The selection of Judges must be based exclusively on objective criteria designed to ensure professional competence. Selection must be performed by an independent body which represents the Judges. No outside influence and, in particular, no political influence, must play any part in the appointment of Judges.”
Yet in Ireland it does. Following the retirement last week of Catherine McGuinness, and the earlier move to tribunal land of Brian McCracken, we now have two potential vacancies in our Supreme Court that Bertie Ahern will fill before the next election. Who will he choose, and what criteria will he use? Who knows.
The relevance of the Supreme Court to our democracy has become ever more apparent in recent years. Whether kicking out our laws on statutory rape, or interpreting constitutional amendments in such a way as to contradict what was intended by the people, or deciding on adoption rights or even determining when legal protection can be afforded to human life, the courts are being asked to play a role that is more properly the remit of the Dail.
Political cowardice has played a large part in bringing us to this place – politicians run in fear of moral and social decisions – and that cowardice has placed the courts, not the legislature, at the centre of our lives. This is not their role. Judges cannot be expected to replace the will of the people, and must not be expected to fill the voids left by politicians who are too timid to legislate.
As US Federal Court judge Diarmuid F. O Scannlain wrote, “A politician in robes is no judge at all. Once a judge imposes his will as legislator, he loses his democratic legitimacy . A judge who wields power like a politician enters the political process. Having forsaken neutrality, he will soon lose his independence. The people will allow a judge to be independent only for as long as they perceive him as truly neutral, forsaking decisions based upon his own interests and biases.”
For the moment, though, we have the worst of all worlds. Our politicians shirk their responsibilities to legislate in areas of public controversy – such as abortion, in-vitro fertilisation, adoption – and dump their failures on the courts. Yet they fail to provide an appointment procedure that is outside the political ambit.
The proper balance must be restored. Independent judges must “confront the law as it is written and the facts in evidence” as O Scannlain said; and elected representatives must have the courage to make law. The roles are separate, and deliberately so.