With the pending establishment of a new Court of Appeal and a predicted spate of senior judicial retirements in the coming year, the judicial appointments process is the subject of renewed debate. In recent years it has increasingly been accepted that the strongly political nature of Ireland’s judicial appointments system threatens to undermine public confidence in the integrity and the independence of the Courts.
In fact the judiciary itself, demonstrating again its increased willingness to intervene in constitutional debates, has recently made a strident public intervention calling for an overhaul of the appointments process. The report argues that the criteria for judicial appointments should be based exclusively on merit rather than party-political affiliation.
This stance is likely to find considerable support in a broader public, wary of the politics of patronage and favour in public life generally. Indeed the fact that judges appointed by politicians will decide cases involving the government seems to involve a conflict of interest at the most fundamental level. However, while political affiliation has undoubtedly played some role in judicial appointments, it is far from clear whether this has actually undermined judicial independence. Judges enjoy strong constitutional guarantees against improper pressure or intimidation from government and there is a strong culture of independence on the Irish bench. These factors combine to ensure that judges will not become beholden to those who appoint them. Crucially, there is no evidence that judges appointed by politicians of a particular stripe are subsequently influenced by partisan considerations in deciding cases. In contrast to the United States Supreme Court, Irish judges cannot usually be identified with the ideologies of specific political parties (of course this is attributable in part to the narrower range of political opinion).
Yet notwithstanding independence issues, there is still the argument that judges should be appointed based on merit alone – and that this would seem to support a system of appointment through some form of expert agency rather than via the political process.
While it is indisputable that judicial appointment should be separate from party-political affiliation, it is unrealistic to suggest that it could ever be extricated from “politics” in its broader sense. It is all very well to say that “merit” should be the sole basis for selecting judges, but what does it really mean? I argue that ultimately, the concept of merit in the context of judicial appointment is inseparable from political and ideological considerations. In every jurisdiction, the responsibilities of senior judges go well beyond the domain of technical lawyerly skill. Far from mechanically administering laws laid down by the legislature, judges are, in reality, responsible for developing the law. And the question of how the law should be developed in this way raises fundamental “political” questions about the nature of justice and injustice, the distribution of power and opportunity in society, and so on. This is partly why some American judges are subject to Senate confirmation hearings. Indeed judging at all levels involves sometimes significant elements of discretion – which means that judicial power is not always guided by strictly “legal” standards.
All of this suggests that evaluating judicial candidates is not quite like selecting engineers or physicists – it can never be divorced from considerations that are “political” in the broadest sense. Arguably, this means that ultimate responsibility for judicial appointments should lie with politically accountable authorities – even if their discretion should be constrained by various procedural requirements, and structured by a non-political agency.
The creation of the Judicial Appointments Advisory Board in 1995 represented a minor adjustment to the appointments process, as constitutionally the ultimate power to appoint judges lies with Government. In England and Wales, there has been a much stronger move towards a non-political appointments process. However, the Irish judiciary enjoy more far-reaching constitutional powers than their English counterparts, primarily because they can strike down Acts of the Oireachtas which are interpreted as unconstitutional. Although these powers are used in a small number of cases, they are a reminder of the deeply “political” nature of some aspects of the judicial function. In most of the civil-law jurisdictions of continental Europe, judges of the “ordinary” jurisdiction – which do not hear cases involving government – are usually appointed by a non-political agency. However, in these countries, ordinary judges usually have no power to adjudicate on constitutional questions. Where such powers exist, they are exercised by specialised constitutional judges – who are almost always appointed politically, whether by the executive or the parliament. For example, members of the French Constitutional Council are appointed by the President of the Republic as well as the Presidents of each chamber of the legislature. In other jurisdictions, constitutional courts members are appointed by members of the legislature itself. Again, this recognises that the powers of constitutional judges have strongly political as well as legal dimensions.
Since there is no such specialised constitutional court in Ireland, these constitutional powers are vested in the general courts instead. The fact that judges of the High Court and Supreme Court are constitutional judges – that is, the fact that they can invalidate legislation based on sometimes vague and open-ended constitutional provisions – means that the appointments system must take account of considerations of political legitimacy as well as merit in the narrower sense. I suggest that instead of a binary debate between political and non-political methods of appointment, consideration should be given to a differentiated system of judicial appointments. In particular, it is arguable that higher-level judges should continue to be appointed through a process in which the ultimate responsible authority is the Government, whereas lower-level judges might be appointed by a non-political agency. It stands to reason that since senior judicial appointments are subject to a greater level of public scrutiny, the risk of party-political influence is diminished in any event.
None of this is to argue that the status quo is satisfactory; in fact, the judges’ recent recommendations are entirely sensible. While the existing text of the Constitution probably limits the degree to which the Government’s power of selection can be constrained, it seems incontestable that its powers should be exercised through a transparent procedure in which the party-political considerations are minimised. However, no reform could fully remove the political dimensions of judicial power. Additionally, any overhaul of the appointments process, whether at legislative or constitutional level, must take account of considerations of political legitimacy.
Eoin Daly is a lecturer at NUI Galway; firstname.lastname@example.org; twitter: @eoinmauricedaly