[Anatomy of Supreme Court Renominations] ③ Judicial Standoff at an Impasse... 'Reforming the Candidate Committee and Revising Nomination Powers' Is the Fundamental Solution

A request for National Assembly approval is floated as a short-term option; longer-term reform of the Supreme Court Justice Candidate Recommendation Committee is also discussed
The president faces concerns over setting a precedent, while the committee

Observers say the intense standoff between the president and the chief justice over the renomination of a Supreme Court justice is difficult to resolve through legal means alone. A constitutional dispute adjudication petition before the Constitutional Court has unclear standing requirements, and the chances of it being upheld are uncertain. The ruling bloc's proposed impeachment of the chief justice and parliamentary investigation are also controversial, both on the gravity of the grounds for impeachment and on the justification for such moves. With even a political compromise to contain the immediate conflict proving elusive, calls are growing for a comprehensive overhaul of the appointment system, including reform of the Supreme Court Justice Nomination Committee and a redesign of the constitutional power to nominate candidates.

According to legal circles on November 2, one possible short-term way out of the extreme standoff is for President Lee Jaemyung to withdraw his request for a new nomination and submit to the National Assembly a motion seeking consent to appoint Son Bonggi, a presiding judge at the Daegu District Court. A presiding judge at a district court in Seoul said, "The proper course is to refer the matter to the National Assembly for confirmation and a decision." Song Gichun, a professor at Jeonbuk National University's Law School, characterized the president's request for a new nomination as an abuse of presidential power, saying, "The president, who holds the key to resolving this matter, should send the appointment motion to the National Assembly and bring it to a close."

However, the presidential office is unlikely to accept this proposal. Submitting the motion now would set a constitutional precedent that "the president must always seek the National Assembly's consent to appoint a candidate nominated by the chief justice." Jung Taeho, an emeritus professor at Kyung Hee University Law School, said, "A compromise has also been suggested under which the president submits the motion and the Democratic Party of Korea, the majority party, votes it down in a plenary session, but there is little incentive to do so."

◆ Diversifying the Supreme Court Justice Nomination Committee is key = With no political compromise in sight, calls are growing to reform the nomination committee, the first gate in the selection of Supreme Court justices, to prevent a recurrence. The argument is that diversifying the committee's membership would lend greater credibility to its recommendations, making it harder for either the president or the chief justice to arbitrarily overturn them.

Under Article 41-2 of the current Court Organization Act, the committee is formed anew for each nomination and consists of 10 members. Its six ex officio members are the senior Supreme Court justice, the Minister of Court Administration, the Minister of Justice, the president of the Korean Bar Association, the president of the Korean Association of Law Schools, and the chair of the board of the Korean Association of Law Professors. They are joined by one judge and three non-lawyer external members, all appointed or commissioned by the chief justice. The chief justice also appoints the committee chair. Even if the committee recommends a shortlist of at least three times the number of candidates needed, its recommendations are not legally binding on the chief justice.

The biggest problem, critics say, is the "structure tilted toward the chief justice." They argue that a majority of the 10 members are under the chief justice's direct or indirect influence. Choi Yonggeun, a member of the Court Reform Subcommittee of the Lawyers for a Democratic Society Judicial Center, said, "It is difficult for six members to be free of the chief justice's influence: the three judge members and the three non-lawyer members appointed by the chief justice." Han Sanghee, an emeritus professor at Konkuk University Law School, also described at least five of the 10 members as "the chief justice's people," adding, "It is inappropriate from the outset for the Minister of Court Administration, who oversees judicial administration, to take part in recommending candidates as an ex officio member."

Proposed alternatives include removing the chief justice's influence and making the committee's recommendations more binding. Choi proposed removing the Minister of Court Administration as an ex officio member and including a judge recommended by the National Conference of Court Representatives, while having the committee elect its chair from among its members. Some also argue that the chief justice should be required to nominate a candidate recommended by the committee, barring any specific disqualifying grounds. However, some within the judiciary counter that "excessively increasing the number of seats allocated to politicians or outside members could hollow out the chief justice's constitutional power to nominate candidates, leaving only its outward form, and undermine judicial independence."

◆ Constitutional amendments and appointment rules that transcend the balance of power are needed = Many also argue that amending only the Court Organization Act, a lower-level statute, would have clear limitations in addressing the root of the problem. Since the current Constitution grants the chief justice the power to nominate Supreme Court justices, excessively restricting the chief justice's discretion through legislation could invite constitutional challenges. Jung, the emeritus professor, drew a line, saying, "A constitutional amendment would be necessary to create a body in which the president, the National Assembly, and the chief justice jointly recommend members and whose decisions are legally binding."

For this reason, legal circles cite a constitutional redesign of the distribution of power as a long-term task. Han Sanghoon, a professor at Yonsei University Law School, proposed abolishing the chief justice's nomination power while extending Supreme Court justices' terms to around 15 years through reappointment, to prevent the adverse effect of a single president replacing more than 80% of the justices during their term. Jung, the emeritus professor, proposed eliminating the nomination power and transferring the lead role in appointments to the president, while raising the National Assembly's required consent threshold from the current "a majority of members present" to "at least three-fifths," making it impossible to appoint a justice without agreement between the ruling and opposition parties. By contrast, Cha Jina, a professor at Korea University Law School, supported retaining the nomination power, saying, "The chief justice is best placed to assess a judge's expertise and moral character."

Experts agree that a set of "appointment norms" must be established that will remain stable even when power changes hands. Professor Han said, "We must not become fixated on the immediate balance of power—who currently holds the presidency and which party has a majority in the National Assembly." A lawyer who previously served as a judicial research officer at the Supreme Court also said, "The system must be designed with the possibility of either camp becoming the opposition in mind," adding, "More important than who wins or loses this standoff is establishing constitutional conventions and rules that will function regardless of a change in government."

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