Why Leo can’t let Whelan and Enda pull this stroke

THERE’S something about Máire’ – but it’s not the idealistic naiveté that actress Cameron Diaz used to characterise Mary in the 1988 cult film. ‘Astute, strategic and inherently political’, is how colleagues judge Máire Whelan. And it begs a big question: Would she have been appointed a judge to the Court of Appeal, when she was Attorney General, if she did not have a political fairy godfather?

When he asked them to find a way to put Máire onto the second highest court in the land, the permanent government granted a last wish for the former taoiseach who was leaving office. And the judicial appointment for Máire was delivered last Tuesday. Enda Kenny also came into Cabinet with a delayed gift for the only minister to object to a potentially dodgy judicial appointment; Shane Ross was mollified by reopening Stepaside Garda Station in his constituency.

It has also emerged that the Attorney General remained in the room while the Cabinet made the decision to appoint her – a flagrant breach of etiquette and protocol, according to other lawyers. And that the Tánaiste Frances Fitzgerald, who proposed Ms Whelan, reportedly did not tell the Cabinet that three High Court judges – eminently better qualified for the position – had expressed an interest in being appointed to the Court of Appeal.

HOW Mr Kenny and his fixers did it puzzled everyone, including the Government Information Service (GIS) – they could not say how Ms Whelan had been appointed… but the GIS were certain how it was NOT done. The GIS were adamant that the protocol where an Attorney General had first refusal on any vacant senior judicial appointment was NOT exercised. No, Fianna Fáil used that convention to appoint serving Attorney General Harry Whelehan to the High Court in 1994 and the Labour TDs were so enraged at the ‘stroke’, they left government while Fine Gael, in opposition at the time, were apoplectic. In response to the Whelehan controversy, the Fine Gael-led Rainbow government established the Judicial Appointments Advisory Board (JAAB) in 1995.

Does Fine Gael really believe that Ms Whelan’s legal talents are so prodigious – they are prepared to risk a general election to support Mr Kenny’s final political stroke – that they will have her sit on the State’s second highest court in such controversial circumstances?

Even the Labour Party, where Ms Whelan was treasurer before her appointment as Attorney General, says the process used to propel her to the Court of Appeal was wrong. And the respectable wing of Fine Gael is keeping an embarrassed silence. Fianna Fáil said the deal ‘stinks’ and the Bar Library and the Law Society are holding their collective noses, while the judges of the superior courts exchange disapproving eye-rolls.

Ms Whelan attended a meeting of the JAAB when they discussed applicants to replace Justice Garret Sheehan, who retired in March. It is understood applications from very senior barristers for the Court of Appeal position were turned down. Ms Whelan sat at the meeting, without expressing any interest in being appointed, when the presidents of our most senior courts said an experienced judge was better suited than a barrister with no judicial experience. That raises awkward questions which demand candid answers:

Why did Ms Whelan not recuse herself from the Cabinet room when her appointment was being discussed?

Why did Ms Whelan not tell the Cabinet about the JAAB’s preference for an experienced judge to fill the vacancy?

Why was it not apparent to Ms Whelan that her lack of judicial experience ruled out her appointment by the JAAB?

And if she did not fulfil the requirements of JAAB, the only way Ms Whelan could be appointed to the Court of Appeal was by a direct nomination by the Government. So far, the ‘no problem, move on’ explanation offered by the Government is not remotely plausible.

Without a credible explanation, Ms Whelan could be accused of possessing a breathtaking sense of entitlement that conjoined with former taoiseach Mr Kenny’s swaggering arrogance.

I presume that Mr Kenny felt obligated to secure the post for Ms Whelan because they were the key movers in the resignation of the former Garda Commissioner Martin Callinan and Minister for Justice Alan Shatter in 2014.

Ms Whelan prophesised legal and political Armageddon, and the overturning of verdicts in criminal cases, when she heard about the taping of phone calls from Garda stations – but her advice was alarmist and wrong. Then she compounded her questionable judgment by refusing to inform Mr Shatter about the crisis in An Garda Síochána. And, acting on her advice, Mr Kenny dispatched a senior civil servant to suggest to Mr Callinan that he resign.

Maybe Mr Callinan had other good reasons to resign but advising him to resign was a grave error of judgment.

The Fennelly Commission looked into the debacle and Ms Whelan initially said her alarming advice about the Garda phone tapping was based on her belief that there had been a ‘complete violation of the law’. Again, she was wrong. But, later, when she lawyered up and submitted another, amended statement that was significantly different, she survived.

IT does seem astonishing for an Attorney General to have a ‘mature reflection’, correcting an earlier recollection, but it clearly tipped the balance of the Commission’s findings in her favour. It wasn’t an absence of careful planning but flawed judgment that led to the Attorney General’s professional failures.

Ms Whelan is a methodical person, a joiner who volunteers – it takes perseverance and commitment to work as a treasurer in any organisation. But her loyalty and voluntary service to the Labour Party propelled her professional career into the highest echelons of Irish justice.

And the lessons learned in the backroom of a political party were useful to her retaining lawyers to act for the State when she was Attorney General.

Lawyers who supported the Labour Party did better on her watch but then she rewarded some more than others.

The scandal erupting over the alleged stroke of her appointment was Mr Kenny’s hospital pass for Leo Varadkar arriving in the Taoiseach’s office. And, simultaneously, it prompted an immediate crisis for Ms Whelan’s successor as Attorney General, Seamus Woulfe. The cronyism scandal is payback to cocky young Varadkar who will now have to clean up the putrid mess Mr Kenny left behind him. Mr Kenny’s cronyism is a flashback to the political culture in 1984, when he was first elected a TD in Mayo – Máire Whelan is also from Connacht, born in Kinvara, Co. Galway.

Oh yes, the West is awake… to the sound of craven cronyism and brazen opportunism. Mr Varadkar has made a personal promise to serve the public, not his party.

And, as Taoiseach, he should neither be an enabler for his predecessor’s nepotism – nor an apologist for a former Attorney General’s bad judgment.