Supreme Court decision on judges is devoid of logic

THE Supreme Court decision to uphold the constitutionality of the Judicial Appointments Bill is a reminder of when the late Garret FitzGerald threw his ‘bursting with brains’ head around some problem of the day and said: ‘It works in practice but I’m a bit concerned it might not work in theory.’ Or words to that effect.

Now it appears that the Supreme Court has given a clean bill of health to the law that will govern the appointment of judges, and for reasons directly opposite to concerns expressed by the late taoiseach. Seven members of the highest court in the land believe that the Judicial Appointments Bill works in legal theory and in the letter of the law, despite what it means in practice.

The Constitution confers on the Government the duty and responsibility for appointing judges. The Government then tells Michael D of its choice and he does what he’s told and signs the judges into office. Simple.

However, the Bill, which will now become law, requires the Government to choose judicial appointments from a list of just three people handed to it by worthies on the Judicial Appointments Commission.

From now on the Government cannot, lawfully, appoint a judge unless that person has first been nominated by the commission. If that’s not a practical demonstration of the Government’s choice being fettered, then what is?

But, the Supreme Court insists that the ‘theory’ of the Bill is sound, constitutionally. This is because the Government still has a choice, and can reject any or all of the names put forward for appointment. The Government can start the whole process again. And presumably, reject the next list of names as well… and on… and on…

So now we have a situation where the Government can still advise the President to appoint so-and-so, but such advice may only flow from a choice that has been restricted. And, as we all know, a restricted choice is no choice at all. The Supreme Court’s decision is devoid of logic, in practice. Sound in theory though.