JAABing the Woulfe
I have mentioned before that 25 years in aircraft financing taught me very little about the technical side of aviation. But one thing I learnt early in my career was that transitioning a leased aircraft smoothly from one operator to the next depends critically on the reliability of the records kept by the outgoing operator of maintenance and repairs it has overseen to the aircraft.
I learnt that lesson from an instance of an airline refusing to take delivery of an aircraft coming out of an operator that had gone bankrupt because, although the records paper trail seemed complete, its technical team suspected that much of the work recorded had not been done properly if it had been done at all. Instead, some of the records had allegedly been faked or, as an engineer from the airline described them: “pencil whipped”.
Over the past fortnight, suspicion is abroad that government has been “pencil whipping” the process and sequence of events leading to the appointment of Seamus Woulfe to the Supreme Court. Whether one thinks Mr. Woulfe should resign or be impeached because of events since his appointment, no possible blame attaches to him over the manner of his appointment.
Mr. Woulfe was Attorney General in the last government. He applied for the Supreme Court position and his application was given the green light by the Judicial Appointments Advisory Board (JAAB) while that government was still in office. But the vacancy remained open when that government left office in June and Mr. Woulfe was succeeded as Attorney General by Paul Gallagher. The new government advised the President to appoint Mr. Woulfe to the Supreme Court in July.
The circumstances of that appointment came under the spotlight when The Irish Times reported on 13 November that a number of senior judges had written to the government to express interest in the vacancy but the cabinet was not told of this before it selected Mr. Woulfe for the appointment. The report suggested that the Taoiseach and Fianna Fáil ministers were told that the JAAB had recommended only one name (Mr. Woulfe) for the position, but were not told that judges do not apply for posts through the JAAB. That channel is reserved for lawyers who are not already serving judges.
The report quoted a spokesman for the Minister for Justice as saying this:
As is standard practice with judicial appointments, the Minister for Justice, having considered expressions of interest from serving members of the judiciary; other judges eligible for the position; and the recommendation of JAAB, then recommended a name to Cabinet in line with the recommendation of JAAB.
A later report in the same newspaper on the same day confirmed that Micheál Martin had not been told of the interest of other judges in the post. That is relevant because the cabinet handbook provides that the Taoiseach, Tánaiste, any other Party Leader in Government, the Minister for Finance and Attorney General should be informed, in advance, of proposals to make judicial appointments. So Mr. Martin would have had direct formal involvement in the process twice; before and during consideration of the appointment by the cabinet.
Eamon Ryan also confirmed that he too was not made aware of applications from judges when he, as a party leader in government, was informed of the proposal to appoint Mr. Woulfe, ahead of its consideration by cabinet.
Leo Varadkar has been vaguer about his awareness of interest in the post among serving judges. According to The Irish Times of 19 November, the Tánaiste said that he knew of two lists; one of judges seeking promotion and one of judges eligible for promotion, but he knew neither how many names were on either or what those names were. I think that implies that Mr. Varadkar did not know of specific expressions of interest among judges in the specific Supreme Court vacancy but I am not quite sure.
On 17 November, The Irish Times reported a statement by the Minister for Justice, Helen McEntee, that she had adhered to a very clear process before bringing Mr. Woulfe’s name to cabinet. According to the newspaper, Ms. McEntee said that when she was appointed as Minister, she looked at the recommendation that had been made by the JAAB which supported the former Attorney General’s application for the role, as well as other expressions of interest.
I looked at the recommendation that had been made and other expressions of interest that often come in for these positions. Following that, I spoke with the Taoiseach, the Tánaiste, Minister [Eamon] Ryan and the AG, and on foot of that a recommendation was made and a name was given to Cabinet.
Two days later, the newspaper published a comment piece by David Kenny, assistant professor of law at Trinity College. Mr. Kenny pointed out that the JAAB assesses only whether lawyers applying for appointment are qualified for the position, not whether they are the most qualified applicant. It does not rank candidates or recommend particular candidates.
According to Mr. Kenny:
This is why Judge Woulfe’s recommendation by the JAAB says very little. The JAAB recommending Judge Woulfe means that it found him appointable, but it did not recommend his appointment over other candidates. That is simply not how the JAAB works.
The three judicial candidates who applied for the Supreme Court vacancy did not come through the JAAB process, but applied directly to government. That they were not recommended by the JAAB says nothing about their comparative merits for the position.
On to the broadcast media with which I don’t engage very much. I am sure there are many more relevant interviews but I will focus on two I heard on 20 November.
The first was with the Minister for Finance, Paschal Donohue with Áine Lawlor on RTE’s Morning Ireland.
Mr. Donohue confirmed that Ms. McEntee had spoken with him before bringing the matter to cabinet. “I was aware that the appointment was being made and I became aware of the name in cabinet.” He wouldn’t expect to have been advised of the recommended name before cabinet or of the names of other possible candidates…
…because it is up to the minister to determine what is the appropriate person and name and the reason for that is when appointments like this are made, if we get into a debate regarding individual names and candidates it undermines the process itself and, indeed, could act as a deterrent to people putting their name forward…
Ms. McEntee offered a robust defence of her position in an interview with David McCullagh on RTE news that evening.
My job as Minister for Justice is to look at the recommendation(s) from JAAB, to look at any other expressions of interest that come in, to let, not to consult with, but to let the Taoiseach, the Tánaiste, the AG and, in this case, because of the type of government we have, to let Minister Ryan know. What we obviously do is greater than that. I don’t ever and would never propose a name to cabinet having not received approval.
She pointed out that she has overseen the appointment of six judges in her period office.
…in different instances I have given one name to all of those people I have mentioned. In other instances I have given more than one name.
Regarding the specific case of the Supreme Court vacancy…
…In this instance I recommended one name, the name that I thought was the best person for the job and I need to be clear on that. I looked at all of the names. This is not somebody who was randomly selected by me or anybody else. He came through an independent process.
Ms. McEntee hit out at what she perceived as unfair criticism:
What is being inferred here is that because I was Minister for Justice for three weeks that I was not capable of doing this. There is an inference here that I was not capable of making a decision myself now and putting a name forward.
So what are we to make of all this?
The Constitution provides for judges to be appointed by the President on the advice of the Government and there is no question of that box not being properly ticked in this case. What is not established at all is that the Government’s recommendation of Mr. Woulfe’s appointment to the President “emerged” pursuant to a clear and independent “process”, which the Minister for Justice oversaw as something of a trustee or custodian of its probity, rather than a sequence of steps steered by the Minister towards a desired destination.
Mr. Woulfe applied for the job and was deemed qualified by the JAAB, no doubt entirely correctly. But those steps only got him “into the frame” for selection. There is no evidence of any process at all, let alone an “independent” one, governing the next crucial step: his transition from bona fide candidate to eventual appointee. That gap was bridged simply by the Minister for Justice selecting him as her preferred option and the cabinet approving this. We have no information at all about how she arrived at the choice.
And this is not some kind of debatable interpretation of what the Minister said. It is what she actually said to David McCullagh. But while affirming this fundamental truth, she and her spokesperson have confused the picture in several ways. First, in the same interview she said that Mr. Woulfe came through an independent process. Not true. Second, earlier her spokesperson asserted that Mr. Woulfe’s name emerged as a recommendation from the JAAB, a claim echoed by ministerial colleagues. Not accurate either.
Third, and perhaps most ludicrously disingenuous of all is the diversionary tactic of rebutting alleged “inferences” that she was too inexperienced to do her job. I haven’t heard that “inference” uttered by anybody in public life, but even if it had been or if Ms. McEntee had been in the job for 20 years, that would not transform a personal selection into an independent process.
Let’s move on to the engagement of other ministers in the “process” before the matter comes to cabinet and the consideration of it by the cabinet itself.
Mr. Varadkar stated in the Dáil that he told Mr. Martin and Mr. Ryan that Mr. Woulfe had been recommended for the position by the JAAB “only after they had agreed that a new attorney general would be appointed”, in other words before the current government itself was appointed and, by implication, before Ms. McEntee raised the matter with designated office holders as prescribed in the Cabinet Handbook before bringing a proposal to cabinet.
It may be that some of those senior ministers therefore laboured under the misapprehension that the JAAB “recommendation” was the beginning and end of the matter. I find that between hard and impossible to believe. These are all smart, experienced and politically savvy people. But, in that unlikely eventuality, it would have been Ms. McEntee’s responsibility to advise them of the limited relevance of that recommendation.
In her interview with David McCullagh, Ms. McEntee pointed out rightly that the Cabinet Handbook prescribes only that she “inform” these senior ministers of her proposals. But she went on to say that the discussions are more substantial in practice. “What we obviously do is greater than that. I don’t ever and would never propose a name to cabinet having not received approval.” So clearly, ministers can and do sometimes probe the Minister for Justice on her recommendation. And in the case of a vacancy on the highest court in the land, it is reasonable to assume that ministers would expect there to be expressions of interest from within the serving judiciary.
But, the party leaders, the Minister for Finance, the Attorney General and later the cabinet as a whole seem to have been remarkably passive and incurious about any aspect of the context of the Minister’s proposal. It is worth recalling that the Constitution obliges the Government to meet and act as a collective authority, not as a rubber stamp for anybody or anything.
Minister Donohue’s suggestion that people might be deterred from applying for posts if ministers were to discuss individual names and candidates before making an appointment is a complete red herring. It is much more likely that people will be deterred if they have a sense that the government fixes on a preferred candidate before any formal deliberations and that no other names will get any genuine consideration at all in the so-called selection “process”.
Did her cabinet colleagues adopt this casual and carefree approach because they have total confidence in the Minister’s ability to establish not only which candidates are qualified for a position but, in her sole discretion, which is the most qualified?
Or was it because the “decision” had already been taken long before it came to cabinet and that cabinet’s role was only to “pencil whip” it?