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Former Attorney General Maire Whelan with President Michael D Higgins and Taoiseach Leo Varadkar after she was appointed a Judge of the Appeal Court. Niall Carson

Opinion 'All judges do "do politics" - no judge is pure or neutral when deciding cases'

Those who appoint judges should be democratically accountable. The government is accountable, writes Dr Tom Hickey.

THE DEBATE ON judicial appointments suffers from the dominance of a particular myth: that judges do not and should not “do politics” when they decide cases. The idea that judges engage political considerations is anathema to many lawyers and judges; it is as though the very idea destabilises the democratic order.

Judges simply apply rules that politicians make, or so the theory goes. But to suggest that judges do politics – or that the line of demarcation between “law” and “politics” is not so hard and fast – is hardly radical.

In fact, judges cannot avoid engaging political considerations for the following fairly simple reason: Adjudication involves interpretation, and interpretation involves engagement with questions of value.

In short, legal rules often don’t give definitive answers, particularly in cases reaching appellate courts, yet judges have to make find answers. They do so by reference to things like the context and purpose of those rules, their value or rationale. And different judges will have different understandings of what the context or purpose or value or rationale of different rules might be. This means that judges get into what scholars call “normative” or “value-oriented” considerations. Normal people call them political considerations.

Asylum seeker’s right to work

Consider the following examples. Readers might recall that earlier this month the Irish Supreme Court ruled in favour of a Burmese asylum seeker who argued that the legislative ban on work applying to asylum seekers breached the constitutional right to work. The judgment was widely welcomed, including – perhaps ironically – by members of government who had effectively been told by the judges to revise the legislation to remove the constitutional defect.

But we might note that the whole case hinged on whether the right to work under the Constitution applied at all to non-citizen asylum seekers and, if so, in what ways and to what extent. There was no clarity on those questions in the constitutional text or anywhere else; no definitive rule, or indeed anything like it, for the judges to simply apply.

Rather, they had to figure out what amounted to an interpretive conundrum. And doing so meant engaging with the essentially moral/political principles underlying the constitutional right to work. After thoughtful analysis, the judges concluded that the right “protects something that goes to the essence of human personality such that to deny it to persons would be to fail to recognise their essential equality as human persons as mandated by Article 40.1” of the Constitution. That was the pillar upon which the judgment rested.

To say that it was an essentially moral/political pillar is not to denigrate it; it is simply to recognise it for what it is, albeit that it was very insightfully integrated by the judges into pre-existing legal and constitutional norms. (I analysed the judgment here).

School entry

Take another case from a few years back involving the Stokes family, an Irish Traveller family, whose son John had failed to get a place in Clonmel CBS High School. The school used various criteria for allocating places including one that gave automatic entry to applicants whose fathers had themselves attended the school.

The criterion did not target Travellers for hostile treatment, but the argument was that it indirectly discriminated against them in virtue of the fact that less than 100 Travellers attended post-primary school anywhere in Ireland in the period when John Stokes’s father was of school-going age.

The question for the judges this time was whether this “father rule” placed John Stokes at a “particular disadvantage” such that it fell foul of the relevant provision of the Equal Status Acts. That is, mere disadvantage on its own – which was surely inarguable – would not suffice; it had to be more severe such that it would count as “particular disadvantage” for the purposes of the legislation.

Value-oriented interpretation by judges

Again, there was no simple answer. Figuring it out meant engaging with a broader analysis of the purpose and value of rules against indirect discrimination, which the judges did (although not as insightfully in this instance, in my view; but others would disagree). The point is that again this was largely a question of value-oriented interpretation undertaken by judges; it was not simply the mechanical application of pre-existing rules.

And so it often is with adjudication, particularly in higher appellate courts, including in the more dry and technical cases that do not get public or academic attention. Judges have to figure out what kinds of processes are “due;” how to resolve conflicts between freedom to practice religion and freedom from discrimination based on religion, whether the “common good” requires some kind of interference with private property; what that murky concept of the separation of powers requires or allows or precludes in this or that context.

As someone once put it (a judge, as it happens), judges cannot simply call “Open Sesame” and find the unimpeachably true meaning of any given provision or norm or rule of law.

What might we conclude? (Or more to the point, what might the Fine Gael TDs reflect on this week, having been prompted to do so by the new Minister for Justice this week in advance of parliamentary debates on the new bill).

Law is not neutral

Well, first we ought to open our eyes to it: law is not mechanical and neutral in any pure sense. It cannot be. It necessarily involves interpretive actors doing their best to identify good answers to interpretive conundrums. Sometimes they do it really well; other times, not so well.

Accordingly, we should dismiss the suggestion – made for example by a 2014 submission by senior judges to the Department of Justice on reform of the appointments process – that “political considerations should be irrelevant.” We should be equally wary of the notion – again propagated by many practicing lawyers and indeed judges in this whole debate – that “merit” is the only consideration, and that merit is somehow a neutral term.

We might be wary again of those who rail against the notion that only lawyers – and lawyers experienced in litigation – could ever know anything about what might make a good judge. Sure, we cannot pluck people randomly off the street and command them to appoint judges. And of course there is value in having those with experience of litigation, including judges themselves, involved in the process. But shouldn’t elected representatives of the people also be on any new body tasked with selecting suitable candidates?

And aren’t there good arguments for having people from outside of law and electoral politics on such a body? Whether non-lawyers should have a majority on such a body is probably not as important as it has been made out to be recently. In my view, such as I’ve considered it, they probably should not. But if they do, the sky won’t fall in.

The government is the agency that is most accountable

If those points run against what many in the law library have been suggesting, there is another point that runs against what their apparent nemesis at the Cabinet table has had to say on this. That is that we should equally be wary of the thoughtless assertion that government should not have any control over judicial appointments and of the notion that a shiny new agency, immune from “political” influence, will produce shiny new judges who are pure and neutral and who never “do politics.”

Yes, there may be good arguments for devolving aspects of the power to select or shortlist candidates for judicial appointments to an arms-length body, and for streamlining that process. But equally there are good reasons why we would want those who finally appoint our judges to themselves be democratically accountable. And government is the agency that is most democratically accountable: it answers day by day and month by month to the people’s representatives in parliament.

And it can be sacked by those representatives at a moment’s notice, or by the people at election time. That’s democracy.

Dr Tom Hickey is director of the LLM (Master of Laws) at Dublin City University. He recently co-edited the Judges, politics and the Irish Constitution volume (MUP). 

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