Dr. David Kenny:

Several commentators have suggested the risk of patronage appointments may be more significant in the Circuit and District Courts. They are also perhaps the posts with the least direct political salience. Whereas our superior courts deal with matters of constitutional law and are, as Dr. Carroll MacNeill put it, empowered to override the Government - there are matters of politics at stake - this political salience is significantly less acute in the context of the lower courts. If a genuinely independent body were established to make judicial appointments entirely separately from the process of Government - which would require a constitutional change - it should probably not be considered for High Court, Court of Appeal or Supreme Court appointments because they involve genuine political issues that should be considered by somebody with political accountability. There are checks and balances that need to operate with constitutional-level courts. It is, however, something that might be considered for the District and Circuit Court appointments process, where the political stakes are lower and there is more risk of patronage.

There is scope for making this differentiation either quite radically or in terms of the criteria according to which the applicants are considered. We might look for different things from superior court judges who are empowered to deal with the constitution and perhaps make more politically salient decisions. We might want to differentiate in a more significant way as opposed to applying a one-size-fits-all measure. Compounding that is the fact that the criteria for all appointees are so vague at the moment. As Dr. Cahillane mentioned, the board looks at things like education, professional qualifications, temperament and character, competence and probity in practice. Those are not things that are binding, rigorous or constraining in terms of the choices. We might want to specify what we mean by them and actually lay out what we believe judicial merit is. Our visions of it might be very different depending on what court we are talking about and what powers that court has.