At the end of an extraordinary week for the country's highest court, Legal Affairs Correspondent Orla O'Donnell examines the controversy surrounding the appointment of Seamus Woulfe and where matters might go from here.
"A shambles", "a conundrum", "out of touch with reality", "hysterical", "a colossal pig's ear": These are just some of the phrases used by legal sources in the past few days to describe the current crisis engulfing the Supreme Court - and how it has been handled by all sides.
As one senior barrister put it, the conundrum is that many of Seamus Woulfe’s colleagues clearly believe he should resign. And yet some judges, lawyers, and it appears, politicians believe it’s very unlikely his conduct rises to the standard for removal from office as set out in the Constitution.
Some have called it the judiciary's version of Saipan. And opinions amongst lawyers are just as divided as public opinion was during Roy Keane’s bust up with Mick McCarthy in 2002.
Many believe the most likely outcome is that Judge Woulfe will sit on the Supreme Court in February when the three-month period of effective suspension, suggested by the Chief Justice, comes to an end.
They say the other members of the court will just have to get on with it at that stage. But others believe there could be resignations from the court at the highest level, if that situation came to pass.
The actions of the Chief Justice in releasing correspondence between himself and Mr Justice Woulfe in the aftermath of their meeting on 5 November, have stirred sympathy for the newest member of the court.
This sympathy is being felt even amongst those who were previously very critical of Judge Woulfe. Many are questioning the wisdom of the Chief Justice expressing a very public view that the judge should resign, in the face of a clear opinion from his predecessor that this was not justified and a consistent position from Judge Woulfe that he would and should not.
However, there are those who feel the Chief Justice had little choice. Sources say Frank Clarke was determined to make it clear to the public, that the members of the judiciary took this situation very seriously from the very beginning.
They say the senior judges wanted people to know that they understood people’s anger and that they did not believe the outrage over Judge Woulfe’s attendance at the Oireachtas Golf Society dinner was due solely to a "media frenzy" and "inaccurate" characterisation of the event.
Dr David Kenny, assistant professor of law at Trinity College Dublin, acknowledges how unusual the actions of the Chief Justice were. But he said this was testament to the gravity of the situation and the clear concern that the issue had potentially brought the Supreme Court into disrepute and damaged its reputation in the long term. Another senior barrister, said he was on the Chief Justice’s side "all the way".
The public way this crisis has unfolded is unprecedented. On Monday 24 August, less than a week after the dinner in Clifden, the Supreme Court issued a statement through the Courts Service announcing the court’s decision to ask Ms Justice Susan Denham to consider the matter. This was the first time legal correspondents have ever received such a statement from the court.
From then on, most steps in the process were made public - from the results of the Denham review, to the publication of the transcript of Judge Woulfe’s interview with the former Chief Justice, to the astonishing release of correspondence last Monday night.
Transparency has been a hallmark of Frank Clarke’s tenure as Chief Justice. One of his very first initiatives in October 2017 was to open up the Supreme Court by allowing television cameras in to broadcast judgments live.
At the time, he said he wanted to "demystify" the legal process and that he was very much in favour of the public getting the opportunity to understand as much as possible about what happens in the courts.
He seems to have taken the same approach to this controversy. And he has sought to ensure that the Supreme Court could not be perceived as closing ranks to protect one of its own.
He may have gambled that if the controversy became a matter for the Oireachtas, it would finally persuade Seamus Woulfe to take his advice and resign. But barristers are "flabbergasted" that there does not seem to have been a plan in place to deal with a situation in which that gamble didn’t pay off.
"The controversy has opened "a can of worms" some barristers believe, that could have unforeseen consequences"
There is speculation that the Supreme Court judges were exasperated by a number of factors - including the leaking of Susan Denham’s conclusions to journalist, Daniel McConnell of the Examiner, some hours before they were due to be published.
As can be seen from the correspondence between the Chief Justice and Judge Woulfe, there is also some bad feeling about the meeting between the judge and three senior colleagues on the day after the Denham review was published.
The Chief Justice said Judge Woulfe had emailed him after this meeting. He said he had repeatedly asked Judge Woulfe to confirm he was not suggesting any inappropriate conduct on the part of the three judges and he had not addressed this issue.
Judge Woulfe said he had never accused his colleagues of engaging in inappropriate or improper conduct. But he said the content and tone of what they said and their collective demeanour had been "unexpected, upsetting and traumatic" and had added very significantly to an "already stressful situation".
The repeated postponement of the meeting between Judge Woulfe and the Chief Justice also exacerbated the situation.
These factors were unhelpful in trying to resolve the matter. And it is clear that an apology recognising the justified public anger and upset, even while outlining his own defence, would have gone a long way towards ending the controversy.
But the Denham review found calls for his resignation over his attendance at a "celebratory dinner in the middle of a pandemic" would be unjust and disproportionate. She expressed this view, even after carrying out the lengthy interview with Judge Woulfe, the transcript of which was subsequently released.
Denham also had a second interview with him as she prepared her final report, the transcript of which, has not been and, the judicial council says, will not be released.
If she found no cause for him to resign over his attendance at the dinner and his attitude towards it, few people believe his handling of the controversy since then, however ill-advised, is enough to warrant beginning the process of removing him from office.
Some observers feel the cumulative effect of the scandal, causing the irreparable damage to the court referred to by the Chief Justice, came about only because of the decision to publish the transcript and subsequent correspondence.
As one judicial source noted, after Susan Denham had issued her report, "there was nothing left," in terms of misconduct. This source suggested impeachment was "a total non-starter and would be a complete abuse of power". The same source does not think the Chief Justice’s resignation over the matter is likely either.
The controversy has opened "a can of worms" some barristers believe, that could have unforeseen consequences.
It has focused attention on the process by which judges are appointed and has caused some mutterings suggesting that "Shane Ross was right all along", referring to the former Independent TD’s persistence in raising the issue during his time in Government.
Dr Laura Cahillane, of the University of Limerick, says the delay in bringing in legislation to deal with complaints about judges has "landed us in the current mess". The only way of holding a judge accountable is if the Oireachtas begin the process of removing the judge for "stated misbehaviour", which has never been defined.
She says the "unfair and arbitrary" system of appointing judges now also needs to be tackled. She says the appropriateness of appointing an outgoing Attorney General to the bench needs to be reconsidered, as does the notion that a good practitioner will automatically make a good judge.
Whatever about future appointments, there is a palpable lack of enthusiasm on the part of politicians in this case, for getting involved in a lengthy, time-consuming process to remove a judge with no clear consensus about the justification for such action.
According to RTÉ political reporter, Mary Regan, such proceedings could tie up TDs for months, distracting them from both the Covid-19 crisis and their own constituency work, with little benefit for them in terms of public approval or more importantly, votes.
Judge Woulfe and his highly experienced legal team, including former Attorney General, John Rogers, would be likely to challenge any such action in the courts - leading to a potential crisis if the matter were to end up having to be decided by the same Supreme Court members who have already made their views known.
Such a scenario would be enjoyed by legal academics. But the hope is that a way can be found to resolve the issue in a far less damaging manner.
