The Government has finally relented and agreed that Minister for Justice Helen McEntee should answer questions in the Dáil on the appointment of the former attorney general Séamus Woulfe as a Supreme Court judge. McEntee's explanations thus far have been given in tightly controlled settings that left little room for the issue to be probed. The Opposition rightly refused to accept this, and the longer the Government held out the more it conveyed the sense that it had something to hide.
Taoiseach Micheál Martin's claim that Dáil questioning on judicial appointments may breach the separation of powers is baseless. The nomination of senior judges is one of the most important responsibilities a minister for justice holds. To disallow the parliament from interrogating McEntee's method for doing so is executive over-reach. Of course the identity of the nominee in this case is germane to the issue – Woulfe is a longtime Fine Gael activist, had stepped down as attorney just three weeks before his selection as a judge and was the least experienced candidate in the running. His judgment has also been the subject of intense public debate since the Oireachtas Golf Society dinner in August. But it should not be beyond the ability either of the minister or her questioners to marshal their exchanges in a way that respects the boundaries between Leinster House and the Four Courts.
The minister has serious questions to answer. The Government's version of events is that McEntee, in her first three weeks in office, and without consulting any of her political colleagues, evaluated dozens of names, including judges who had expressed an interest, all eligible serving judges and one name put forward by the Judicial Appointments Advisory Board (JAAB). What exactly does that process consist of? Presumably she analysed CVs, read large volumes of published judgments and considered gaps in legal expertise on the Supreme Court. This is the least you would expect, given the importance of the role. Who did she ask for advice? If she received a shortlist, who came up with it? What were the criteria she applied? Did she consult the attorney general? Or was she presented with a situation she understood tacitly or otherwise was a fait accompli?
Remember that accepting a JAAB recommendation for a Supreme Court vacancy – which Martin seems to think is in itself a sign of probity – is exceptionally rare when choosing a Supreme Court judge. That’s because experience is highly valued in a judge at the apex of the court system. And judges don’t apply through the JAAB, whose function is to filter out lawyers who lack basic qualifications. The Government broke with practice in appointing Woulfe. He may have been a strong candidate, but that’s beside the point. The point is the process, and all the current evidence suggests this was a process that barely merits the name.