The nomination process for Supreme Court justices has become prolonged due to a conflict between President Lee Jae-myung and Chief Justice Jo Hee-dae, prompting legal scholars to voice various opinions on the legal issues and necessary reforms.
On October 13, a forum titled 'Legal Issues and Institutional Improvement Suggestions Regarding the Nomination of Supreme Court Justice Candidates' was held at the Participatory Democracy Hall in Jongno, Seoul.
The forum was moderated by Kang Mun-dae, president of the Lawyers for a Democratic Society, and featured discussions with Han Sang-hee, emeritus professor at Konkuk University Law School; Song Gi-chun, professor at Jeonbuk National University Law School; Han Sang-hoon, professor at Yonsei University Law School; and Choi Yong-geun, a lawyer and member of the Judicial Reform Committee of the Lawyers for a Democratic Society.
While the discussants agreed that Chief Justice Jo's actions were not illegal, they emphasized the need for the National Assembly to intervene through legislation to mediate the conflict and ultimately resolve the issue through constitutional amendments.
Han Sang-hee, the first speaker, characterized the situation as a political power struggle among government branches. He noted that past presidents have attempted to formalize the Chief Justice's nomination authority amid historical judicial crises, stating, "The informal practice of 'prior consultation' was merely a facade for executive influence over the nomination power."
He added, "While the president's refusal to forward a nomination or send a request to the National Assembly may be subject to political and ethical criticism, it is ambiguous to label it as legally unconstitutional. Ultimately, the parties involved must bear political responsibility."
Conversely, Han Sang-hoon argued that the president's appointment power should be limited to a passive veto. He stated, "The president's authority to appoint Supreme Court justices should be viewed as a 'passive appointment power' that accepts nominations unless there are clear disqualifications or legal defects, aligning with the principles of the rule of law and judicial independence." He cautioned against mistaking informal prior consultations for agreements and suggested exploring options such as requesting a ruling from the Constitutional Court regarding jurisdictional disputes to resolve the ongoing vacancy.
He further expressed, "In the long term, the Chief Justice's nomination authority should be abolished, but this requires further restrictions on the president's appointment power."
Professor Song also criticized the excessive exercise of presidential appointment power, citing past instances where the executive branch undermined the nomination authority during the formation of national bodies like special investigation committees. He argued, "The president's demand for re-nominations to ensure preferred candidates undermines the essence of the nomination power." He added, "The president's failure to submit a consent proposal to the National Assembly without clear legal grounds should be relinquished."
The discussants unanimously called for structural reforms to address not only the excessive concentration of presidential power but also the judicial administrative authority and nomination power concentrated in the hands of the Chief Justice. They argued that the current structure, where the Chief Justice exercises nomination authority alone, infringes on the independence of fellow justices and leads to a hereditary transfer of power within the judiciary.
Choi emphasized, "The current Supreme Court Justice Recommendation Committee operates as the only check but is under the influence of the Chief Justice." He advocated for enhancing transparency by adjusting the composition of the committee to increase the proportion of judges and revising the rules to exclude the Chief Administrative Officer of the Court from automatic membership, ensuring substantial verification.
Additionally, he proposed that constitutional amendments and legal revisions should establish a process for electing the Chief Justice through the recommendation committee or by a vote among justices.
Han Sang-hee also suggested referencing the selection process for federal judges in Germany, which involves participation from the judiciary, legislature, and state government ministers. He stressed the need to abolish the monopolistic nomination power of the Chief Justice to prevent the pitfalls of an imperial judiciary and transition to a structure that reflects diversity and democratic legitimacy.
During the forum, criticism was also directed at the National Assembly for failing to fulfill its responsibility to mediate conflicts and lead institutional reforms. Han Sang-hee remarked, "Amid the standoff between the Supreme Court and the presidential office, the National Assembly is neglecting its constitutional duty by not pursuing amendments to the Court Organization Act or preparing mediation proposals, nor conducting substantive verification through national audits."
He criticized the current situation, stating, "While the Chief Justice remains obstinate about appointments and the presidential office exercises veto power over undesired candidates, the public is left unaware of the reasons for the stalled appointments, suffering only from delays in judicial proceedings."
Participants concluded that the ongoing vacancy of Supreme Court justices should serve as a catalyst for discussions on constitutional amendments and revisions to the Court Organization Act to overcome the limitations of the 1987 constitutional system.
* This article has been translated by AI.
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