The emerging details of the sequence that led to Séamus Woulfe being appointed to the Supreme Court give us a glimpse into a secretive process that often mystifies even those closest to it. Few Cabinet ministers in any government see how judicial selection happens; usually, they are presented with a fait accompli arrived at by discussions between four key players: Taoiseach, Attorney General, Minister for Justice and, in a coalition, Tánaiste.
Yet even within that select group, in the case of Woulfe's nomination, the deliberations were highly circumscribed. Taoiseach Micheál Martin was told that Woulfe's was the only name recommended by the Judicial Appointments Advisory Board (JAAB), but not that Minister for Justice Helen McEntee had on file a number of expressions of interest from judges who were seeking to fill the position. Judges do not apply to JAAB so, given that Supreme Court judges usually come from within the ranks of the judiciary, JAAB is a rarely-trodden route into the State's highest court.
We have had a glimpse into the process, but only a glimpse. Important parts of the picture are still blurred. Under the 2013 Denham protocol, serving judges can write to the government to convey their interest in promotion. A small number of them in the past seven years have written directly to the minister for justice, but usually the letter goes to the attorney general. Up to June 27th, that was Woulfe. It appears that the attorney’s office, in keeping with established practice, copied those letters to the minister for justice, who, from June 27th, was Helen McEntee.
Less clear is who was involved in the decision itself. McEntee received one name from the JAAB, but did she consult with anyone when she was weighing up the applicants before settling on a candidate who, while he was the State’s chief law officer and a long-time senior counsel, had no judicial experience?
Judges writing to government under the Denham protocol do not include CVs, so presumably some research had to be done on the contenders for the role. The Minister's office said she also considered other eligible judges (there are more than 100). Did she discuss the matter with Woulfe's successor as attorney, Paul Gallagher? Was Tánaiste Leo Varadkar involved? Nor is it clear to what extent the Woulfe nomination was discussed between Martin and Varadkar.
In July, Martin said the appointment was “completely independent of Government formation talks”. Yesterday, he said that shortly before the formation of the Government, “the Tánaiste would have informed us that Séamus Woulfe had come through the JAAB process and that his appointment would likely come before Cabinet”.
The Government says this is standard procedure for appointing judges. That’s broadly true. However, in some cases in recent years, memos for Cabinet, as well as specifying the one recommended nominee, have included lists of all those who have been recommended by the JAAB and those judges who have expressed interest. On other occasions, only the nominee’s name has appeared before Cabinet.
This minutiae matters. Judges are powerful figures; their decisions can shape the direction of the country and people’s lives in profound ways. What these unflattering snapshots describe is a dysfunctional system in desperate need of an overhaul.