It was not surprising that the Sunday Independent would have a go at Adrian Hardiman. He was the one who masterminded their destruction in the de Rossa libel case and in his first cross-examination of their chief witness had him gibbering touche as point after point was scored against him.
But the Sunday Independent was right in ridiculing the suggestion that we should be impressed by Adrian Hardiman's public spiritness in making do with an annual salary of just short of £100,000. All the more so since the household income of the Hardimans (Judge Yvonne Murphy of the Circuit Court is Mrs Hardiman) is to be over £170,000. With a little household budgeting, that should be enough to be going on with.
Adrian Hardiman is bright, he has a great command of the law, he is judicious and, I believe, incorruptible. (OK, my track record in discerning incorruptibility hasn't looked great recently, but allow me this one.) Thus he would seem to have all the attributes of a great judge.
There is also merit in making appointments to the Supreme Court straight from the Law Library or from the solicitors' profession (this is not permitted as yet for some reason). The alternative of making appointments from the High Court is problematic, for it makes judges beholden to the State for promotion. Anyway, some of the best judges of the last 40 years either have been appointed directly from the Law Library or have had very little experience on the High Court. Nial McCarthy and Hugh O'Flaherty were appointed directly, while Cearbhal O Dalaigh, Brian Walsh, Tom O'Higgins and Susan Denham had very little High Court experience.
BUT is intelligence, knowledge of the law, judicial wisdom and incorruptibility enough? Should we not know a little of how Adrian Hardiman is likely to exercise the huge powers of a Supreme Court judge before we commit ourselves to having him there for almost a quarter of a century?
We know his views on divorce and abortion, for he has campaigned publicly on these issues, but how about his views on, say, the balance between the powers of the State and the rights of individuals - an issue that is hugely relevant in criminal trials? We do not know.
Those of us who might wish for more press freedom might feel slightly apprehensive about his appointment. On the Saturday before his elevation was announced, Adrian spoke at a conference on press freedom at Trinity College. He spoke trenchantly in support of the Supreme Court's decision in the de Rossa case, which upheld the High Court award of £300,000 against the Sunday Independent.
As other speakers at the Trinity conference said, the Supreme Court judgment in the de Rossa case was one of the worst of that court in a long time. As I myself wrote (I do not want to ascribe this opinion to others) the judgment, while acknowledging that the law of libel was a balance between the rights of the individual to their good name and the right to press freedom, went on to ignore the issue of balance.
Courts in Britain, the US, Canada, Australia and New Zealand have all recently (not so recently in the case of the US) extended the scope of press freedom. What the Supreme Court did here was to restrict it, and to do so in an unreasoned way.
There is reason to believe that Hardiman's views on press freedom are illiberal - for instance he has previously argued that the libel laws are not at all as bad as the media say they are. Should we not have had this issue teased out before he was appointed to the Supreme Court for 23 years - if he chooses to stay there, if he avoids making inquiries of court registrars about the procedures of lower courts (this was the enormity which necessitated the resignation of Hugh O'Flaherty) and if he lives until then, he will be there until 2023.
We probably know more about Catherine McGuinness's views. She is strongly civil libertarian, she is a feminist, almost certainly she would be in favour of more, not less, press freedom. While she suits my ideological predilections, very definitely she would not suit those of others, and again would it not have been fairer if we all knew where she stood on a variety of matters before she was appointed?
John Murray is another recent appointee to the Supreme Court - he filled the vacancy caused by the resignation of Hugh O'Flaherty. He is a darker horse than most because he was hidden away in the European Court of Justice for 10 years, and there nobody knows what individual judges think about anything because all judgments of that court are majority judgments - no dissenting judgments are permitted.
Clearly, John Murray brings great expertise in European law to the Supreme Court, and there is reason to believe that he might be the most liberal judge on press freedom. As Attorney General in 1989 he requested the Law Reform Commission to undertake a study of the law of libel and contempt of court. This was entirely his own doing and reflected a belief on his part that the existing law was too restrictive. But should dark horses, whatever their pedigree, be appointed to positions of such power without us knowing what they might do with that power?
In the next few months two more vacancies will occur on the Supreme Court with the retirements of Donal Barrington and Henry Barron. The Dail or the Oireachtas Committee on Justice, Equality and Women's Rights might like to have a say on the new appointments.
Yes, the Constitution provides that appointments to the judiciary are made by the President on the advice of the Government, but the Government remains answerable to the Dail on all matters, including that of judicial appointments. It is time that the representatives of the people exerted some influence on appointments to the most powerful institution in the land.