The Interdependent Third Branch
Tracking court organization, administration, structure, and strategy
My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.
The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.
These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.
Chief Justice Frank Clarke, Ireland’s seniormost judge, will not be accepting the €5,200 (approximately $6,300) annual pay raise afforded to him by that country’s government. The Irish Independent explains that “The move is understood to have been a personal gesture by Mr Justice Clarke in recognition of the economic hardship caused by the pandemic. However, the disclosure is likely to put pressure on colleagues to signal a willingness to do likewise.”
The Irish government approved pay raises for all the country’s judges, as well as other government officials. The pay raises come wrapped in controversy, as the government has simultaneously refused to pay student nurses on the frontlines of the pandemic. The circumstances certainly create an awkward situation for judges, who presumably would like to take the pay hike but also want to avoid public blowback.
The Irish Cabinet has approved the appointment of four judges–three to the Court of Appeal and one to the High Court–after a personal plea from the new President of the Court of Appeal George Birmingham.
The appointments were made relatively smoothly, after Transport Minister Shane Ross assented to the decision. Ross has blocked appointments in the past and has pushed for a new Judicial Appointments Commission on the grounds that the appointment process itself is broken.
The desperate need for new judges to keep up with the courts’ work seemed to be key to the decision:
[T]hree things have diminished Mr Ross’s sway – the pressing need for more judges in some courts, without which court business has been seriously affected; the lack of support for Mr Ross among his Independent Alliance colleagues, who have made it clear to him and to the rest of their Government colleagues that while they support Mr Ross, they are not prepared to make it an issue which threatens the future of the Government; and the advent as Minister of Charlie Flanagan, who is of a less patient nature than his predecessor Frances Fitzgerald.
Mr Flanagan has made it clear that if the courts need judges, he sees it as his responsibility to bring nominations to Government.
The Association of Judges in Ireland, the representative body for that country’s judges, has requested that the government restore judicial salaries to pre-financial crisis levels. New judicial appointees currently earn less than judges on the same court who were appointed before 2011.
In a questionable twist, however, the Association has argued that maintaining the lower salaries for new judges could constitute “indirect gender discrimination” because recent appointees include more women than before.
Come on. It’s hard to imagine why the Association would take such a specious position, especially with much more plausible arguments available. Ireland may not constitutionally protect judicial salaries, but surely the better case is that external control over judges’ pay wreaks havoc on judicial independence. Moreover, as the Association itself pointed out, similar discrepancies in teacher and health care worker pay were being addressed, leaving judges on the outside looking in.
Judges are naturally aware that their complaints about salary and benefits can sound elitist, especially when the even a “low” salary is well into six figures. But trying to invoke the specter of discrimination here is wildly counterproductive.
After last month’s major controversy over an unusual process used to select a judge to its Court of Appeal, the Irish government has returned to established procedures to select its newest Chief Justice, Frank Clarke. From the Irish Times:
The Government spokesman said the intention of the process was to “mirror the spirit” of new draft legislation governing judicial appointments, but “not to every detail”.
The Judicial Appointments Bill, which has been promoted by Mr Ross, will not become law until the autumn at the earliest.
Chief Justice Susan Denham is due to step down after six years as head of the judiciary, and 25 years on the Supreme Court, next month.
Previous coverage of the controversy here, here, here, and here.
The controversial appointment of Maire Whelan to Ireland’s Court of Appeal continues to ruffle the country’s new government. This week, Transport Minister Shane Ross proposed a bill to create a new Judicial Appointments Commission. The new commission would have a majority of non-lawyer members, and would be chaired by a non-lawyer. The commission would select final nominees, who would then be chosen by the government.
The bill immediately came under fire from Fianna Fail, the political party whose support is necessary to uphold the government’s confidence and supply agreement. The proposal was also publicly criticized by prominent members of the judiciary.
This blog has been closely following the appointment of former Irish Attorney General Maire Whelan to that country’s Court of Appeal last week, which has engendered enough controversy to threaten to bring down the new government. Whelan accepted her appointment on Monday, but that hardly ended the matter. On Wednesday night, the Dail (Ireland’s parliament) held a lengthy debate over the propriety of the appointment. According to one story:
A two-hour debate was held in the Dáil to discuss the appointment last night.
It became extremely heated.
New Minister for Justice Charlie Flanagan said a new bill was part of the government’s aim of “entirely reforming the judicial appointment system”.
Jim O’Callaghan dismissed the claim that Cabinet confidentiality prevented the answering of essential questions on the matter.
Sinn Féin’s Mary Lou McDonald, meanwhile, said that Micheál Martin – who wasn’t present for the debate – had serious questions to answer based on a telephone call he had with the Taoiseach on the matter last Sunday.
She questioned whether Martin attempted to use his influence on the government to prevent Whelan being appointed.
Labour leader Brendan Howlin took aim at the Independent Alliance who, he claimed, “clapped through an appointment that they now oppose”.
Clare Daly said the appointment was legal, but “political”.
Mattie McGrath said “new politics, my foot”.
Sinn Féin’s Jonathan O’Brien got into a war of words with Minister Flanagan, after asking how many others applied for the role.
Today, Taoiseach Leo Varadkar was asked if the situation had affected Fine Gael and Fianna Fáil’s confidence and supply arrangement. “Obviously the week that has gone by I don’t think has been helpful for either party,” he said. “But we have a written agreement.”
We’ll continue to watch how this plays out.
The controversial appointment of former Attorney General Maire Whelan to Ireland’s Court of Appeal last week continues to draw headlines. Minority parties in the government have alleged several improprieties with the appointment, including that Whelan never formally applied for the post through the Judicial Appointment Advisory Board, and that she remained in the Cabinet meeting while her appointment was being debated.
Continue reading “Update on the Maire Whelan controversy in Ireland”
A significant political controversy appears to be brewing in Ireland after the outgoing Taoiseach (prime minister), appointed Attorney General Maire Whelan to a seat on the country’s second highest court. Minority parties in the government, including Fianna Fail and Sinn Fein, have charged that the appointment violated established procedures. It also appears that Whelan never sought the post.
Continue reading “Major controversy brews over judicial appointment in Ireland”
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