Senior members of the judiciary are “extremely disappointed” following Micheál Martin’s personal attack on Máire Whelan who has now been officially appointed to the Court of Appeal by the Chief Justice.
Chief Justice Susan Denham made a series of remarks on Wednesday emphasising the importance of the separation of powers between the Oireachtas and the judiciary. The comments are understood to be in direct response to Tuesday's Dáil exchange which saw the Taoiseach and the Fianna Fail leader cite the names of several judges during a heated row.
The Chief Justice made the remarks in a customary short speech at the swearing in ceremony for Seamus Wolfe SC who is replacing Ms Justice Whelan as attorney general. Later in the afternoon Ms Justice Whelan was sworn in as a judge of the appeal court by Chief Justice Denham.
The former attorney general’s appointment has been overshadowed by controversy since it emerged she was present at cabinet when she was nominated for the position, which at least three other judges had expressed an interest in.
On Tuesday in the Daíl Mr Martin disparagingly compared Ms Whelan to others who had been appointed by previous governments to senior judicial positions.
Taoiseach Leo Varadkar said that Fianna Fáil had in the past appointed people such as Supreme Court judge Frank Clarke and former Supreme Court judge Adrian Hardiman, who died last year.
“Máire Whelan is no Frank Clarke,” Mr Martin replied. “Máire Whelan is no Adrian Hardiman.”
On Wednesday Chief Justice Denham said the separation of powers in the State means each great organ of State has its own specific powers.
“It is a system of checks and balances and inevitably the courts make decisions on the actions of other branches of government,” she said. “Consequently, it is necessary that there be some distance between the branches.”
By the nature of this position and function, “judges are not expected to engage in public controversy, as other groups may who freely express their views to members of the legislature and executive”.
Senior legal sources have told The Irish Times that the remarks are intended to be in direct response to the Dáil exchange which caused widespread anger among senior judges.
“It might have been reminding people on both sides on the house that sitting judges’ names and positions shouldn’t be discussed and argued about in the Dáil.”
The source said there was consternation that both Mr Varadkar and Mr Martin used the judges names, including that of Ms Justice Whelan, to score political points in the exchange.
“That was regarded as being a big breach of protocol. The [Chief Justice’s] remarks were a strong reminder that the house shouldn’t be discussing judges in that way.”
It is understood judges are particularly concerned about the criticism of Ms Justice Whelan at a point when she was already officially a judge after having been appointed by President Michael D Higgins on Monday.
A High Court judge said there is broad anger amongst both those who supported her appointment and those who were opposed to it.
“It’s a dangerous road and the hair always stands on end when you hear these things coming from Leinster House,” they said. “It is extremely disappointing.”
