[Law & Story] Controversy Over Re-nomination of Supreme Court Justice Candidate

Focus on Chief Justice Cho Hee-dae’s Next Move
Resolution Needed Through Mutual Consultation, Not Direct Confrontation
An Opportunity to Codify the Appointment Process for Supreme Court Justices

Seokjin Choi, Law & Biz Specialist

Controversy is mounting as President Lee Jae-myung, instead of submitting the National Assembly's confirmation request for Daegu District Court Chief Judge Son Bong-gi—who was recommended as a Supreme Court Justice candidate—has asked Chief Justice Cho Hee-dae to re-nominate a candidate.

There have been instances in the past when the President and the Chief Justice clashed over Supreme Court Justice appointments; however, this is the first time the President has officially requested a re-nomination.

This incident has pitted the Blue House, the Supreme Court, the ruling party, and the opposition party against each other, each presenting their own arguments. The Blue House argues that Chief Justice Cho’s written nomination, which was made unilaterally without prior consultation, failed to respect the President's authority to appoint Supreme Court Justices and violated procedural norms. In contrast, the opposition claims that President Lee has invalidated the Chief Justice’s nomination authority for Supreme Court Justice candidates and is even asserting grounds for impeachment.

Given the current text of the Constitution and relevant statutes governing the appointment of Supreme Court Justices, it is difficult to say definitively that one side is correct and the other is wrong.

Article 104, Paragraph 2 of the Constitution stipulates only that “Supreme Court Justices are appointed by the President with the consent of the National Assembly on the recommendation of the Chief Justice.” In accordance with the separation of powers, this can be interpreted as guaranteeing the Chief Justice’s right to recommend, the National Assembly’s right to consent, and the President’s right to appoint. Similarly, the subordinate Court Organization Act prescribes only the composition of the Justice Candidate Recommendation Committee and that the Chief Justice should respect the committee’s recommendations.

Therefore, when disagreements arise between the President and the Chief Justice regarding Supreme Court Justice candidates, the procedure for resolution is left to constitutional interpretation and precedent. It is clear, however, that unlike the Constitutional Court Justices—whom the President is obliged to appoint when nominated by the Chief Justice—the President is not constitutionally required to appoint a Supreme Court Justice on the Chief Justice’s recommendation.

This arrangement prevents both the President and the Chief Justice from unilaterally appointing their preferred candidates, mindful of the fact that the Supreme Court does more than just render final judgments but also sets nationwide judicial standards through its policy-making function, affecting various aspects of citizens' lives.

For this reason, a long-standing constitutional custom has developed in which the Blue House and the Supreme Court consult and coordinate before recommending Supreme Court Justice candidates. Some, including the opposition, characterize this as “behind-the-scenes coordination” and argue that it is a negative practice that should be abolished. However, in the absence of statutory provisions to resolve conflicts between the President and the Chief Justice, this mutual respect and cooperation between the executive and judiciary was an inevitable choice to fill legal gaps and prevent disputes in advance.

Chief Justice Cho’s written recommendation, by breaking with this tradition, has exacerbated the conflict. His next step should be to seek a resolution through dialogue and consultation with the President, rather than a direct confrontation.

President Lee Jae-myung is leaving the Supreme Court in Seocho-gu, Seoul on the afternoon of the 28th, when Chief Justice Cho Hee-dae requested the re-nomination of former Supreme Court Justice No Tae-ak's successor Justice candidate. Photo by Yonhap News

Furthermore, this incident highlights the need to clarify and codify the entire process of recommending, nominating, and appointing Supreme Court Justices. The Court Organization Act or Supreme Court Regulations should specify the prerequisites and procedures for withdrawing or re-nominating a candidate. The National Assembly’s confirmation hearings should also be refined so that the right to approve appointments can be exercised thoroughly.

To diversify the makeup of the Supreme Court—which is currently composed almost exclusively of judges—there should be a review beginning with the Justice Candidate Recommendation Committee, which now includes three incumbent judges. The starting point for Supreme Court appointments is ensuring that nominees are broadly acceptable to all stakeholders.

Under the revised Court Organization Act, President Lee is expected to appoint 22 Supreme Court Justices during his term. If these relevant regulations are not revised now, similar controversies are likely to recur with each new nomination. Now is the right time to prevent future conflicts at their source.

This content was produced with the assistance of AI translation services.