Judicial Diversity: Of Gender in Particular

In an earlier post I gave some details of the composition of the current Irish Supreme Court and of the backgrounds of the four men tipped to fill the seat left vacant by Mr. Justice Kearns’ move to the Presidency of the High Court.  Yesterday, a prominent senior counsel criticised the practice of indirect lobbying by senior lawyers (direct canvassing is forbidden) with ambitions to be appointed to the bench, raising the difficult question of the role of political connections in the selection of Irish  judges. The choice – if you follow what the newspapers say- is between four highly accomplished and well respected men. Within the narrow range of options, a move towards greater diversity on the Supreme Court might involve selecting a man in his fifties rather than his sixties, a constitutional lawyer rather than a private lawyer, a Protestant rather than a Catholic, or a man who went to a state Catholic school in the city rather than to a private Catholic boarding school. It might, at a – perhaps unimaginable – stretch, involve the appointment of a lawyer trained in Cork or Galway or one who made his name taking cases against the state rather than in its service.

The newspapers’ foursome of Brady, Clarke, O’Donnell and O’Neill ought, perhaps, to be taken with a pinch of salt but it does reflect, with a reasonable degree of accuracy, the selection of candidates available when we restrict Supreme Court appointments to a certain  – under current conditions inevitably – fairly homogenous section of society. It will be a long time, for instance, before we see an appreciable number of  faces in that group of any colour other than white. When will we see more women? Since the judicial appointments process has been opened up to solicitors, the number of women in the group of potential judicial appointees has increased; in particular because more women are senior solicitors than are senior barristers. In 2008, 36 women were senior counsel compared to over 200 men, yet women are set to outnumber men at the Bar by two to one come 2010. What options for placing brilliant women lawyers on the Irish Supreme Court  might present themselves if academic lawyers were eligible for appointment to the bench? Professor Fionnuala Ni Aolain’s nomination to the European Court of Human Rights offers a glimpse of the pool of talent lying untapped, as does the British encounter with Baroness Hale (on which see an interesting article by Durham’s Erika Rackley here).