Supreme Court Justice Lee Heung-gu will retire on the 7th, increasing the number of vacant Supreme Court seats to two. The nomination process for Lee's successor has begun in the National Assembly, but the vacancy left by former Justice Noh Tae-ak has been mired in a re-nomination conflict between the Blue House and the judiciary for over six months. If this conflict is not resolved soon, it could disrupt the operations of both the Supreme Court's divisions and the full court.
According to legal sources on the 6th, Justice Lee will complete his six-year term and retire on the 7th. He was appointed in September 2020 during the Moon Jae-in administration upon the recommendation of former Chief Justice Kim Myung-soo. A native of Tongyeong, Gyeongnam, Lee graduated from Seoul National University’s Department of Public Law and began his judicial career in 1993 at the Southern District Court in Seoul, later serving in various regional courts including Busan, Changwon, and Daegu.
The nominee to succeed Justice Lee, Kim Sung-soo, is currently undergoing the National Assembly's confirmation process. President Yoon Suk-yeol submitted Kim's appointment proposal to the Assembly. The National Assembly's Special Committee on Personnel Hearings will hold a confirmation hearing on the 14th and discuss the adoption of the report on the 16th.
Following this, a vote in the National Assembly and the presidential appointment process will remain. Even with expedited procedures, it appears unavoidable that there will be a simultaneous vacancy of two justices for at least ten days.
The Supreme Court's division operations are also facing challenges. Justice Lee is part of the Supreme Court's third division, which has been without a full complement since Justice Noh Kyung-pil was appointed as the head of the Court Administration Office on July 14. With Justice Lee's retirement, the number of justices available to participate in the third division's hearings will be reduced to two, half of the four-member requirement.
The Supreme Court's divisions are composed of four justices, and a majority of three must agree to issue a ruling. Given the current composition, normal hearings in the third division are likely to be difficult, prompting the Supreme Court to consider adjusting its internal assignments to reorganize the divisions.
A more significant issue is the appointment of a successor to former Justice Noh, who retired on March 3. The Supreme Court's Nomination Committee recommended four candidates in January: Judges Kim Min-ki and Park Soon-young from the Seoul High Court, Judge Yoon Sung-sik from the Seoul High Court, and Judge Son Bong-ki from the Daegu District Court.
Chief Justice Cho Hee-dae delayed the re-nomination for nearly seven months after the recommendations, finally nominating Judge Son as Noh's successor on the 18th of last month. For Justice Lee's successor, he nominated Kim. Unlike the usual practice of meeting the president in person to present nominees, Cho submitted both nominations in writing.
The Blue House submitted the appointment proposal for only Kim to the National Assembly. Regarding Judge Son, it requested a re-nomination from Chief Justice Cho on the 28th of last month, citing a "lack of procedural completeness" in the nomination. This is the first instance under the current constitutional system where a Supreme Court nominee was submitted in writing, and the Blue House demanded a re-nomination.
Chief Justice Cho was expected to announce an official stance on the Blue House's re-nomination request but postponed the announcement after experiencing a family bereavement on the 30th of last month. The Supreme Court is anticipated to release its position following internal discussions, possibly as early as this week.
The key issue is whether Chief Justice Cho will re-nominate a different candidate from the existing recommendations or reconstitute the nomination committee. The Court Organization Act stipulates that the Chief Justice must form a nomination committee each time a Supreme Court nominee is proposed. Legal circles interpret that since the nomination of Judge Son was not accepted, the committee should be reconstituted to follow the proper procedures.
Conversely, there are indications from the Blue House and ruling party that one of the other three candidates recommended by the nomination committee in January should be re-nominated. If Chief Justice Cho opts to reconstitute the committee, the nomination process and negotiations with the Blue House would have to start anew, potentially prolonging the vacancy and escalating tensions between the Blue House and the judiciary.
Historically, there have been several instances of Supreme Court vacancies. In July 2012, delays in the National Assembly's approval of successors for Justices Park Il-hwan, Kim Neung-hwan, Jeon Soo-an, and Ahn Dae-hee resulted in four simultaneous vacancies for about 23 days. At that time, the Supreme Court activated an emergency duty system allowing Justice Yang Chang-soo to participate in hearings for other divisions.
The vacancy left by the resignation of nominee Kim Byeong-hwa for Justice Ahn's successor remained unfilled for about four months after going through reconstitution and re-nomination. There were also vacancies of about three months before the appointments of Justice Park Sang-ok in 2015 and about two months before Justice Kim Sang-hwan's appointment. Additionally, there was a vacancy of about two months before the appointments of Justices Eom Sang-pil and Shin Suk-hee in 2024.
However, past vacancies primarily occurred due to delays in the National Assembly's approval or confirmation processes. It is rare to find a case like this, where a conflict between the president and the Chief Justice has led to a Supreme Court vacancy lasting over six months from the nomination stage.
If the vacancy continues for an extended period, it could strain not only the divisions but also the operations of the full court. The full court can conduct hearings even with Supreme Court vacancies as long as the quorum is met, but there are concerns about the implications of reaching decisions on significant cases without a full complement of justices.
The full court is currently deliberating on cases related to the "three major allegations" against Kim Geon-hee and the charges against former Prime Minister Han Duck-soo and former Minister of the Interior and Safety Lee Sang-min for their roles in a coup. If the Blue House and the Supreme Court fail to resolve their nomination conflict, there are fears that the hearings and rulings on major appeals could be delayed.
* This article has been translated by AI.
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