Dr. David Kenny:

I thank the Chairman and the committee for the opportunity to speak today. It is an honour to be invited before the committee. The current system of judicial appointments in Ireland has little to commend it. While the members of our Judiciary are well-regarded internationally for their quality and are obviously of a high calibre, it is clear, in the words of a recent report by senior members of our Judiciary, that this is in spite of rather than because of our system of judicial appointments.

There are numerous faults in our current system many of which have been noted by Dr. Cahillane and Dr. Carroll MacNeill. They include the charge that criteria in considering and evaluating candidates are rather vague in the extreme; that the Judicial Appointments Advisory Board is composed mainly of judges, with only a small number of lay members, and has taken a hands-off approach to assessing candidates; that the board must, by law, recommend too many candidates but may not rank them; and that the Government can, if it so wishes, choose from those recommendations the candidates who have earned its political favour. All of these problems merit consideration as we try to balance the need for political involvement in the appointments process with the need to end political patronage. In this regard we could consider some simple departures such as hearings in this committee for potential judicial nominees. However, I intend to focus on the issue of judicial diversity and on an aspect of this issue that seems to receive little attention but which is none the less an important consideration in reforming the judicial appointments process.

The diversity of our Judiciary matters, not only because of perception but because a diverse judiciary would be more reflective of the range of viewpoints and outlooks in our society and would engage in a more rounded judicial discourse. At present, we have a clear lack of diversity. It is deeply unfortunate that at present, less than 25% of our superior court judges are women. There is also little to suggest that this will change any time soon. At present, only approximately 30% of those called to the Inner Bar, the senior counsel, from where most of our superior court judges are appointed, are women. We could also make a good case to the effect that there is a lack of diversity in terms of social, educational and economic background among our judges. The fact that most are selected from the extraordinarily elite pool of successful barristers and the rest from the equally elite pool of successful solicitors makes it hard to argue that our Judiciary is broadly representative of society as a whole. Our senior judges, while acknowledging that diversity would be desirable if it came about, have suggested that this is irrelevant to the process of judging and that we should focus only on the merit of candidates in considering appointments. I maintain these are not separate metrics and that there is merit in diversity.

Another aspect of diversity which gets even less attention than gender is diversity of professional experience. Currently, we consider only one type of candidate for judicial office: professional lawyers, that is to say, solicitors and barristers with extensive experience in the practice of litigation. I believe we should consider other candidates and widen the pool from which we select judges. Deputy Alan Shatter, when Minister for Justice and Equality, suggested some broadening of the range of eligible candidates might be appropriate and I fully agree.

Under our current rules a candidate is only eligible for appointment to the courts if he has been a practising solicitor or barrister for a certain period, 12 years in the case of the superior courts. Our senior judges have suggested that we should require even more litigation experience to be appointed as a judge. This is illustrative of the highly professionalised attitude to judging that prevails in Ireland. There are two problems with this approach. First, being a good litigator and being a good judge are not the same thing. The fact that our current judges are drawn from this group of litigators does not mean candidates drawn from other professional backgrounds would not be equally good. Second, this view of judging as an adjunct of the legal profession assesses what makes a good judge from the point of view of the litigator rather than from the point of view of society at large. Although litigators learn valuable skills about practice and procedure, focusing on these aspects of judging ignores the idea that there might be value in a diversity of views and experiences beyond the highest echelons of legal practice. Judging is not only an exercise in technical legal skill and mechanical application of the legal rules, it is an exercise that draws on personal background, life experience, and one's vision of and viewpoint on the law.

The practice of litigation, from where almost all of our judges are drawn, entrenches a very particular way of looking at the law but there are many other perspectives. As one American commentator put it, "Someone with a background in corporate law may feel one way about social issues, while someone who has been an advocate for women’s rights may feel a different way". The law looks different depending on one's professional background, but as of now we do not value any diversity of professional experience among our judges.
Appointing experts from different fields who have legal training, education and experience but have not been involved directly in the conduct of litigation might bring some diversity of views as to how judging should be done. This is not totally unprecedented. One recent appointee, Mr. Justice Max Barrett, was not a litigation practitioner before his appointment, though he was a qualified solicitor for the requisite period. It would seem that similar appointments could be made from the ranks of non-governmental organisations, public interest law groups, law centres, etc.
The legal experience of such candidates would be markedly different from most of our current judges. This could expand the diversity of values and backgrounds in the Irish courts, and bring new perspectives to the Bench. If we were to relax the practice requirements more substantially, we could consider other candidates. Senior administrators who have quasi-adjudicative experience from their previous role, and who have specific legal expertise, might bring interesting viewpoints from outside the world of litigation practice. The former Minister, Deputy Alan Shatter, had mused on the idea of academics becoming judges, as has been common in the United States and elsewhere. Lest I seem self interested I can assure the members that I do not have any judicial aspirations, but I believe that proposal merits consideration.
If there is a concern that such candidates might lack knowledge of the specifics of handling litigation in courts, that is something we could give them. Judicial training would surely benefit all our appointees because arguing a case as a lawyer is not the same as judging one. Courses in judicial studies would be worthwhile for anyone seeking high judicial office. Diversity in terms of life experience and professional experience would make our Judiciary more representative and broaden the somewhat narrow range of viewpoints considered in our current judicial discourse. There is merit in diversity and as we consider reform of the appointments process, this vital issue should not be ignored.
I again thank the committee for this opportunity to discuss the topic of judicial appointments, and would welcome questions on any aspect of the issue.