Who is to Guard the Guardians? How are Judges to be Selected? The Politics of Judicial Selection by Jennifer Carroll MacNeill

• Date: 01 January 2018

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Who is to Guard the Guardians?

How are Judges to be Selected?

DAIRE HOGAN*

he Politics of Judicial Selection in Ireland by Dr Jennifer Carroll MacNeill

(Four Courts Press, Dublin, 2016)

Systems of appointment of judges seek to identify or conrm desirable judicial

qualities such as merit, integrity and experience. ese are all concepts on which (as

between various candidates), and with the best will in the world, people may hold

dierent subjective opinions, so the public interest also requires that those charged

with the screening or selection of judges should themselves be persons of integrity

and with relevant experience.

An added layer of complexity is that, with a view to enhancing public condence

in the court system, greater emphasis has recently been placed upon diversity of

background, or broad representation of the community among the judiciary, and

among the selectors. at consideration has been given a formal basis in some

jurisdictions. In Ireland, in recent decades, that aspect of selection has largely been

focused on ensuring that a signicantly increased proportion of judges would be

women. e religious beliefs (if any) of judicial nominees have not been seen for

some time as being of any signicance, whereas – as the author of the book under

review notes – in earlier decades some representation of minority religions in the

courts was regarded as an important element in judicial appointments, with a seat

on the Supreme Court ordinarily being occupied by a member of a Protestant

denomination.

Readers with long memories may recall some unpersuasive advocacy as to

community representation made in 1970 for a nomination to the US Supreme

Court, that of G. Harrold Carswell. He was widely regarded as an undistinguished,

even mediocre, nominee, leading a supporter in the Senate to say that ‘even if he

were mediocre, there are a lot of mediocre judges and people and lawyers. ey are

entitled to a little representation, aren’t they, and a little chance?’

Against that background, Dr Jennifer Carroll MacNeill’s book is a very welcome

and valuable commentary on how best to structure arrangements for judicial

appointments. A bill on the subject is currently before the Oireachtas, setting

o occasional thunder and lightning storms, generally creating more heat than

* Daire Hogan is a solicitor and a past president of the Irish Legal History Society.