Seth Tillman: Court of public opinion offers Séamus Woulfe
no justice
Pandemic fatigue has led to an overreaction against judge’s
Golfgate error
This is what the Supreme Court judge Séamus Woulfe did not
do; he did not take a bribe, he did not use his official position or government
property to break the law, he did not block the investigation into his
“misdeeds” or fail to co-operate with investigators.
This is what Woulfe did do; in his own time, he had a meal,
at a golf society event, with other people. In doing so, he violated government
pandemic guidance, which was in the process of transition. It had changed the
day prior to the event.
Woulfe made one mistake; he relied on the event’s organising
committee to ensure the event complied with the law. Had I been in his place,
that is precisely what I would have done. I suspect a majority of you would
have done much the same. When I walk into an establishment—a private retail store
or a government building—the on-site staff are the experts. We all rely on
others to know and to advise us regarding prevailing regulations. A catered
hotel event is not so different. There is not the slightest reason to believe
Woulfe knowingly, or even recklessly, broke the law.
If there were no violation of an identifiable legal
provision, then any talk involving removal or resignation is reprehensible. If
there were an actual legal violation, and it were committed inadvertently in a
period of legal transition, Woulfe should face the same treatment and penalty
we all would face; the inconvenience of showing up to court, waiting for one’s
case to be called, admitting error in public, being chewed out by a judge and,
just maybe, a fine, if the law so provides. All talk of resignation or worse is
disproportionate in the extreme.
We all know this. So why all the talk about removal and
resignation? First, because a lot of people have suffered and are still
suffering from the pandemic and its restrictions. But Woulfe is not the cause
of their suffering, and taking it out of his hide will not undo anyone’s loss,
nor solve anyone’s problems.
Second, the view is that state officials—especially judges—should
be exemplars of good conduct. They should know the law and obey its letter and
spirit. I support that view, to a point. With regard to old or settled law, it
makes complete sense to hold judges to a higher standard than the public
because judges know, or should know, the law. Ignorance is no excuse, and judges
regularly hold citizens to account under that standard.
But with regard to “new” law, judges are no better placed
than anyone else to know what the law is. In such circumstances, they should be
held to the same standard as everyone else. Most of us would get a slap on the
wrist and, perhaps, a fine for doing what Woulfe did. Most of us would not be
in danger of losing our livelihood and neither should he.
Third, Woulfe stubbornly defended himself—and this is seen
as pig-headed, if not arrogant. The fact is, many people perform poorly as
defendants. Still, if they are not guilty of wrongdoing, the legal system
should not punish them for not yielding to the most prosecution-oriented view
of the circumstances. Further, characterising Woulfe as pig-headed is just one
view. The other view is that he has a backbone—a characteristic which used to
be considered good in a judge.
Frank Clarke, the chief justice, asked several senior judges
to meet Woulfe and mediate the developing imbroglio. How did Woulfe’s colleagues
respond? Was it like this? “CJ, happy to volunteer. I have a long list of
cases, and they are so . . . boring. This will make a nice break.” Or, was it
more like this? “CJ, I cannot take this on. If the Director of Public Prosecutions or Oireachtas [the Irish national legislature] want to
prosecute or remove, that’s a decision for them. My priority is with my court’s
embarrassingly long backlog of unresolved cases and the long-suffering
litigants caught up in our legal system. And, by the way, what, if anything,
have you done lately to get me more help, and, more importantly, to reform our
rules of procedure, bar and legal profession?”
Respectfully, Woulfe is not the Irish judiciary’s core
problem. People speak about diversity as a basis for appointment to high
office. Let me suggest that experience as a defendant, chewed up by the legal
system, is exactly the sort of diversity the Supreme Court needs most. Promote
that man.
Seth Barrett
Tillman is a lecturer in the Maynooth University Department of Law
[747 words]
First published as: Seth Barrett Tillman, Opinion Editorial, Court of public opinion offers Séamus Woulfe no justice, The Sunday Times (Ireland edn), Nov. 15,
2020, 12:01 AM GMT, News Section, page 14, <https://tinyurl.com/y69zfkso>, <http://ssrn.com/abstract=3729356>;
Subsequently reproduced here: Seth Barrett Tillman, Judicial Impeachment in Ireland, New Reform Club (Nov. 16, 2020, 2:10 AM Eastern Time), <https://reformclub.blogspot.com/2020/11/judicial-impeachment-in-ireland.html>;
