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At the end of an extraordinary week for the nation’s highest court, legal affairs correspondent Orla O’Donnell examines the controversy surrounding Seamus Woulfe’s appointment and where things could go from here.
“A chaos”, “a riddle”, “out of touch with reality”, “hysterical”, “a colossal pig’s ear”: these are just some of the phrases used by legal sources in recent days to describe the crisis The current situation involving the Supreme Court – and how all parties have handled it.
As one senior lawyer put it, the puzzle is that many of Seamus Woulfe’s colleagues clearly believe that he should resign. And yet some judges, lawyers, and apparently politicians believe that his conduct is highly unlikely to live up to the standard for removal from office as set out in the Constitution.
Some have called it the Saipan judicial version. And opinions among lawyers are as divided as public opinion during Roy Keane’s break-up with Mick McCarthy in 2002.
Many believe that the most likely outcome is that Justice Woulfe will sit on the Supreme Court in February when the effective three-month suspension period suggested by the Chief Justice ends.
They say that the other members of the court will have to move on at that stage. But others believe that there could be resignations from the court at the highest level, if that situation were to happen.
The actions of the Chief Justice in disclosing the correspondence between him and Justice Woulfe after their November 5 meeting have drawn sympathy for the newest member of the court.
This sympathy is felt even among those who were previously highly critical of Judge Woulfe. Many question the wisdom of the Chief Justice in expressing a very public opinion that the judge should resign, in the face of a clear opinion from his predecessor that this was not justified and a consistent position by Justice Woulfe that he would and should not.
However, there are those who feel that the Chief Justice had no other choice. Sources say Frank Clarke was determined to make it clear to the public that members of the judiciary took this situation very seriously from the start.
They say the senior judges wanted people to know that they understood people’s anger and did not believe that outrage at Judge Woulfe’s attendance at the Oireachtas Golf Society dinner was due solely to a “media frenzy” and a “inaccurate” characterization of the event.
Dr. David Kenny, assistant professor of law at Trinity College Dublin, acknowledges how unusual the actions of the Chief Justice were. But he said this was a testament to the seriousness of the situation and clear concern that the issue would have potentially discredited the Supreme Court and damaged its long-term reputation. Another senior lawyer said he sided with the Chief Justice “to the end.”
The public way in which this crisis has played out is unprecedented. On Monday, August 24, less than a week after dinner at Clifden, the Supreme Court issued a statement through the Court Service announcing the court’s decision to ask Judge Susan Denham to consider the matter. This was the first time that legal correspondents received such a statement from the court.
Thereafter, most of the steps in the process were made public, from the results of Denham’s review, to the release of the transcript of Justice Woulfe’s interview with the former Chief Justice, to the astonishing release of correspondence last Monday night.
Transparency has been a hallmark of Frank Clarke’s tenure as Chief Justice. One of his first initiatives in October 2017 was to open the Supreme Court by allowing television cameras to broadcast sentences live.
At the time, he said he wanted to “demystify” the legal process and was very much in favor of giving the public the opportunity to understand as much as possible about what goes on in court.
He seems to have taken the same approach to this controversy. And he has sought to ensure that the Supreme Court cannot be perceived as closing ranks to protect one of his own.
He could have bet that if the controversy became an Oireachta affair, he would eventually persuade Seamus Woulfe to follow his advice and resign. But lawyers are “amazed” that there appears to have been no plan to deal with a situation in which that gamble did not pay off.
“The controversy has opened” a can of worms “, some lawyers believe, that could have unforeseen consequences”
It is speculated that the Supreme Court justices were exasperated by a number of factors, including the leaking of Susan Denham’s findings to Examiner journalist Daniel McConnell, hours before they were published.
As can be seen from the correspondence between the Chief Justice and Justice Woulfe, there is also a bad feeling about the meeting between the judge and three high-level colleagues the day after Denham’s review was published.
The Chief Justice said that Judge Woulfe had sent him an email after this meeting. He said that he had repeatedly asked Judge Woulfe to confirm that he was not suggesting any inappropriate behavior on the part of the three judges and that he had not addressed this issue.
Judge Woulfe said he had never accused his colleagues of engaging in inappropriate or inappropriate conduct. But he said the content and tone of what they said and their collective behavior had been “unexpected, disturbing and traumatic” and had added significantly to an “already stressful situation.”
The repeated postponement of the meeting between Judge Woulfe and the Chief Justice also aggravated the situation.
These factors were useless in trying to resolve the matter. And it’s clear that an apology acknowledging justified public anger and upset, even while outlining your own defense, would have gone a long way to ending the controversy.
But Denham’s review found that requests to resign for his attendance at a “celebration dinner in the midst of a pandemic” would be unfair and disproportionate. He expressed this opinion, even after conducting the lengthy interview with Judge Woulfe, the transcript of which was subsequently published.
Denham also had a second interview with him while preparing his final report, the transcript of which has not been released and, according to the court council, will not be released.
If she found no reason for him to resign because of his attendance at the dinner and his attitude towards her, few people believe that his handling of the controversy since then, however misguided, is enough to justify the start of the impeachment process of your position.
Some observers feel that the cumulative effect of the scandal, causing irreparable damage to the court referred to by the Chief Justice, came only from the decision to release the transcript and subsequent correspondence.
As a judicial source noted, after Susan Denham issued her report, “there was nothing left” in terms of misconduct. This source suggested that the impeachment was “a total failure and would be a total abuse of power.” The same source also does not believe that the resignation of the president of the Supreme Court is likely over the matter.
The controversy has opened “a can of worms”, some lawyers believe, that could have unforeseen consequences.
He has focused attention on the process by which judges are appointed and has sparked some murmurs suggesting that “Shane Ross was right all along,” referring to the former Independent TD’s persistence in raising the issue during his time at the Government.
Dr Laura Cahillane of the University of Limerick says the delay in introducing legislation to address complaints about judges “has led us to the current mess.” The only way to hold a judge accountable is if the Oireachtas begins the impeachment process for “outright misconduct”, which has never been defined.
She says the “unfair and arbitrary” system of appointing judges must now also be addressed. She says the advisability of appointing an outgoing Attorney General to the court should be reconsidered, as does the notion that a good doctor will automatically be a good judge.
Regardless of future appointments, there is a palpable lack of enthusiasm on the part of politicians in this case, for engaging in a long and slow process to remove a judge without a clear consensus on the justification for such action.
According to RTÉ political reporter Mary Regan, such procedures could immobilize TDs for months, distracting them from both the Covid-19 crisis and their own electoral work, with little benefit to them in terms of public approval or, whatever. it is more important, votes.
Judge Woulfe and his highly experienced legal team, including former attorney general John Rogers, are likely to challenge any such action in court, leading to a potential crisis if the matter were to be decided by the Supreme Court itself. . members who have already made their views known.
Such a scenario would be enjoyed by legal scholars. But the hope is that a way can be found to solve the problem in a much less harmful way.
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