"If you have to get a TD to write a letter, you are not at the races in the first place." This was the comment of one experienced lawyer when responding to the publication of the fact that TDs and Ministers have lobbied the Minister for Justice on the appointment of judges.
Everyone knows lobbying goes on during the appointments process. However, this is usually done discreetly, with a phone call or a word in the ear of the Minister, rather than through a letter from a TD. It is significant that the letters from TDs reported yesterday in the Sunday Independent were signally uninfluential in securing appointments for their preferred candidates. "The contacts that really count you never hear about," said another lawyer. "They never show up anywhere. It's part and parcel of the system. Anyone who thinks it's not is naive."
This was the universal view of lawyers contacted by The Irish Times yesterday, and it was an opinion not restricted to the legal fraternity. A former Fine Gael minister said: "I would have said on numerous occasions, `a vacancy is coming up. So and so would make an excellent judge.' ". However, there was less unanimity as to whether this was a good thing. The director-general of the Law Society, Mr Ken Murphy, had no doubt that it was. "Surely it's a good thing that Government Ministers are taking such an interest in such appointments and their constitutional responsibilities," he said. "There is something to be said for elected representatives of the people to have a say in such appointments. TDs are elected, judges are not. The Law Society is not seeking any change in the system at the moment.
"It is difficult to think of an alternative that would operate well in a democracy. This system has served the country well".
Others are not so happy with the current system, which, it is felt, often results in people being appointed for the wrong reasons. One suggestion is that the job of selecting judges be given over to a commission which would be truly independent and would present a small number of names to the Government. But there would be concern in the legal profession that such a commission should both have the necessary expertise in law and jurisprudence, and be tuned to the needs of society. In Britain, senior appointments are made after consultations with the bench and leaders of chambers. Some critics say this leads to the perpetuation of a system where the same type of person is always appointed to the bench, drawn from the same small circle. The US system, where in some states judges are elected and in others they face questioning by committees of politicians on their views and qualifications, could also prove difficult.
"Can you imagine the kind of judiciary we would get if they all had to answer questions about their views on abortion or on extradition?" asked one senior counsel. A central concern is that if there is transparency in the appointment to such an important institution in Irish life - and no one will say openly he or she is against it - that there should also be confidentiality. This is not just to preserve the dignity of candidates who might be rejected.
"No solicitor will brief a barrister he thinks might be about to be appointed as a judge," said one senior counsel.
There is also concern that certain solicitors might seek appointment as district judges because they felt insecure about their future as solicitors. Whether justified or not, news of their candidacy might be taken as an indication of less than total commitment to their clients.
Whatever proposals might emerge as an alternative to the current system, it will be hard to get a consensus.