Some wonder is it really so bad if politicians appoint judges?

Critics had many different motivations for denouncing the appointment of former attorney general Máire Whelan to the Court of Appeal.

Opposition politicians weighed in in a bid to score points and give newly-elected Taoiseach Leo Varadkar a baptism of fire. Other critics focused on Whelan’s ability or alleged lack thereof.

Some opposing views were based on the personal animosities of senior barristers, while others were probably rooted in sexism.

But the overarching theme was the appointment demonstrated the fundamentally flawed system which allows politicians to appoint judges.

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Despite the criticisms, it has to be acknowledged that some in the legal world are wondering what is really so bad about politicians appointing judges at all.

Most people are in favour of at least the basics of Minister for Transport Shane Ross’s Bill to reform the judicial appointments process, and the Whelan controversy seems to have lit a fire under the Government to push it through. Indeed, Varadkar has said the Dáil will sit into the summer recess to debate it.

Under the present regime, lawyers who want to become judges must apply to the Judicial Appointments Advisory Board. The board then forwards a list of seven names to the Attorney General, who consults with the Minister for Justice and Taoiseach, before a single name is brought before Cabinet for approval.

Sitting judges who want promotion go through a separate process where they write to the Attorney General indicating their interest.

Outside of all of this, the government can decide to appoint people who did not apply through either process, as was the case with Whelan.

Lay majority

Ross’s Bill seeks to replace the board with a Commission for Judicial Appointments. It will have a lay majority and a lay chairperson, and will send only three names to the government for consideration. All appointees will go through the new system, and the government will have to give reasons if it wants to nominate someone from outside it.

Ross argues this system will significantly reduce the influence of party politics in the process.

However, missing from the debate is the point of view, which is shared by many judges and barristers, that some political influence is not only harmless but necessary for a healthy judicial branch.

“People hear the words politicians and judges in the same sentence and have a knee-jerk reaction,” says Dr Patrick O’Brien of the London School of Economics. “They think it’s automatically a bad thing.”

O’Brien says political involvement in judicial appointments can increase diversity on the bench and, counter-intuitively, actually foster judicial independence.

Furthermore, he says, there is no evidence that even blatant party political appointments affect the decision-making of judges once they are in court.

“[Ross] is trying to solve a problem that isn’t there,” O’Brien says. “All the best research suggests that although there is party political involvement in politics, once they are appointed they don’t exhibit any measurable party political bias. So they are independent once appointed. This is the case internationally.”

Political bias

That appears to be supported by Irish research. Last month DCU academics published a study which found no evidence of party political bias in the Supreme Court.

The authors compared the decisions of the judges in the context of whether they were appointed by a Fine Gael or Fianna Fáíl government. They analysed more than 5,000 decisions of the Supreme Court and "despite rigorous testing, found no evidence of partisanship in decision-making".

It should be noted the authors suggested one reason for this is that there is little ideological difference between the two main parties anyway. However, the same research has been done in other countries with similar results.

“In the past the British appointment process was essentially personally run by the lord chancellor and that didn’t have any effect on judicial independence,” O’Brien says.

Many Irish judges and lawyers agree. One High Court judge said "not once" did he witness party political issues influence the decisions of his colleagues. "People know certain judges have their favourite parties. It's not a secret, but it doesn't come into it, not at all."

A senior counsel said some judges “are biased in certain directions but it’s ideological bias rather that party political bias”.

Diversity

Furthermore, O’Brien argues taking politicians out of the appointment process could impact diversity on the bench, an area where Ireland has been quite progressive in terms of gender at least.

The depoliticisation of the appointments process in the UK has resulted in slower progress on gender diversity there, he says.

“Appointments in the UK have to be solely on merit. And merit has been interpreted quite narrowly as someone who went to Oxford, had a long practice and made lots of money.

“A more nuanced interpretation would look at: Do we have enough women? Do we have enough minorities? So the ordinary person going into court can feel they are being judged by their peers and not some white, male elite.

“Politicians can shortcut that. They have an incentive to be seen to increase diversity. There’s something in it for them.”

O’Brien also suggests taking politicians out of the process could actually threaten judicial independence. If politicians do not feel invested in the process they are more likely to criticise the judges who are chosen.

The government will continue to have a role in appointing judges, as mandated in the Constitution, even after Ross’s Bill passes. And few are arguing a system which allows the Attorney General to sit in on the meeting where their appointment as a judge is discussed is not in dire need of reform.

But O’Brien hopes there won’t be a further push to completely depoliticise the process.

“There’s nothing inherently wrong with Ross’s proposals but you have to be aware of what you’re doing. Don’t throw the baby out with the bath water.”