Korea’s Supreme Court nominations fight exposes widening struggle over presidential power, judicial independence

[EXPLAINER]

Korea’s three branches of government have locked horns over the appointment of top court justices, posts that set legal precedents for lower courts.

The Blue House and the ruling Democratic Party (DP) are in a standoff with Supreme Court Chief Justice Jo Hee-de over the recommendation of new justices without properly consulting with President Lee Jae Myung.

While it is customary for the chief justice to visit the president and make the recommendation in person, Jo notified the Blue House of his recommendation in writing on Aug. 18, a move that defies precedent, as the top justice usually coordinates recommendations with the presidential office beforehand.

Jo nominated Son Bong-kie, chief judge of the Daegu District Court, and Kim Sung-soo, chief judge of the Seoul High Court, to the president for Supreme Court appointment. The nominations are to fill the vacancies of former Justice Rho Tae-ak, who retired in March, and outgoing Justice Lee Heung-gu, marking the first justice appointments since the inauguration of the Lee government last year.

Son is a Busan native who has spent a large part of his judicial career in Daegu, while Kim, a South Jeolla native, has served on the bench in Gwangju, Suwon and Seoul.

The move has been blasted as being disrespectful by the DP Chairman Kim Min-seok and other ruling party lawmakers, while the Blue House is reportedly considering rejecting at least one nomination.

How are Supreme Court justices nominated and what is the legal basis?

All 14 Supreme Court justices, including the chief justice, are appointed by the president with parliamentary consent. For the appointment of justices, the chief justice must submit recommendations to the president. The chief justice recommends justice posts after deliberation by the Judges Personnel Committee, an advisory group coordinating judicial personnel issues, and with the consent of the Council of Supreme Court Justices.

Justice candidates undergo a parliamentary confirmation hearing and a plenary session vote in the National Assembly once the president accepts the chief justice’s recommendation and submits an appointment consent motion to the National Assembly.

Korea has three branches — executive, legislative and judicial — functioning largely independently of each other. This separation of powers is often seen as contributing to Korea's swift reversal of President Yoon Suk Yeol’s short-lived imposition of martial law in December 2024.

The president has the power to appoint Supreme Court justices under the Constitution as Article 104, Clause 2 stipulates that “Supreme Court justices shall be appointed by the president on the recommendation of the chief justice and with the consent of the National Assembly.”

Justices serve a six-year term, but the chief justice can only serve a single term. The retirement age is 70 for Supreme Court justices, higher than the 65-year retirement age for lower-court judges. Jo was appointed top justice in December 2023 under the previous conservative Yoon administration. 

Thus, Jo during his tenure will also be able to recommend the replacement for Justice Chun Dae-yup, whose term expires in May 2027. 

A recent revision of the Court Organization Act, however, will increase the number of Supreme Court justices from the current 14 to 26 by 2030, allowing liberal President Lee to appoint 22 new justices by the end of his five-year term in June 2030. Starting in March 2028, the top court will add four new justices over the next three years, bringing its total to 26.

Why is the Blue House peeved over Jo’s move?

The Blue House expressed displeasure over the nomination process in a statement on Thursday, calling it "an unprecedented situation in the constitutional history of the Republic of Korea and an unprecedented unilateral notification that bypassed consultation."

Hong Ik-pyo, presidential secretary for political affairs, said Monday regarding the justice nomination process that he “shares the perception that the president’s power of appointment was infringed upon to a certain extent.”

Asked by a lawmaker at the National Assembly’s budget committee whether there were any legal issues with Chief Justice Jo’s nomination, Hong said, “While the legal issues require a closer examination of the process, it deviates significantly from established practices.” But Hong also said he didn’t agree that the Blue House and Supreme Court were “clashing” over the issue.

The president has two options: send the motion for appointment to the National Assembly or not.

President Lee is reportedly considering sending the motion only for nominee Kim Sung-soo, as the two sides have narrowed their differences on this candidate.

The legal community notes that Lee could request a new recommendation from the Supreme Court under his power of appointment. The president is not obligated to send the motion for appointment consent to the parliament, and failing to do so is effectively equivalent to demanding a renomination process. Thus, the president could accept or reject nominees at his discretion through this legal gray area.

Justices are appointed by the president with parliamentary consent following the chief justice’s nomination, and while this follows constitutional procedures, it breaks the precedent of prior consultation and direct meetings with the president before nominating candidates.

The Blue House on Friday refuted remarks by Justice Noh Gyeong-pil, the head of the National Court Administration, who claimed that the written nomination of Supreme Court justice candidates was agreed upon with the top office.

Noh told a plenary session of the National Assembly’s Legislation and Judiciary Committee last Wednesday that he had consulted with the Office of the Senior Secretary for Communications and Civil Affairs and submitted a written nomination for a successor to the Supreme Court justices because he was not granted a meeting between President Lee and Chief Justice Jo.

Seong Ghi-hong, the new senior presidential secretary for communications and civil affairs, said in an OhmyTV YouTube broadcast Friday, "While there were discussions regarding general matters concerning the nomination of Supreme Court justices, there was absolutely no consultation on specific methods of nomination, such as whether to submit a written nomination."

As of Monday, the Blue House was still mulling its final decision.

What are the contrasting responses from the ruling and opposition parties?

New DP leader Kim Min-seok, Lee’s former prime minister, has demanded that Jo resign over destroying the “rule of law” and disrespecting the top office.

The DP also increased pressure on the top court, hanging up banners calling for the chief justice to step down, with some lawmakers even urging Jo’s impeachment.

On Friday, DP supreme council members demanded the resignation of Chief Justice Jo, calling on him to “stop undermining the authority of the judiciary and take responsibility by stepping down.”

The DP is laying the groundwork for sweeping judicial reform, and DP Chairman Kim on Monday announced plans in a supreme council meeting to amend the law governing the Supreme Court justice candidate recommendation committee.

Kim said that some analysts point out that Jo's intent is "to have the government reject a unilateral proposal made without consultation with President Lee, thereby neutralizing the Supreme Court Judges Personnel Committee itself."

Kim on Monday urged the National Assembly to close what he described as a legal loophole in Article 41, Clause 2 of the Court Organization Act, which requires the formation of a new 10-member committee each time the chief justice requests the appointment of judicial candidates.

The DP has accused the top court of selective intervention, accusing it of meddling in the presidential election while not keeping up its judiciary duties regarding martial law cases.   

The main opposition People Power Party (PPP), in contrast, has defended Jo, arguing that coordinating Supreme Court justice recommendations with the president in person is an improper practice that undermines judicial independence.

PPP chief Jang Dong-hyuk on Monday called on the DP and the Blue House to cease their attacks Jo, saying the criticism was retaliation for the Supreme Court's ruling against Lee last year.

In May 2025, Jo’s Supreme Court controversially overturned a lower court's acquittal of then DP presidential candidate Lee who was accused of lying during his 2022 campaign in violation of the election law.

At a PPP supreme council meeting, Jang said regarding the Blue House criticism of the written recommendation process, "The reason is clearly to appoint justices who align with the president's preferences, but Chief Justice Jo refused to go along with that agenda."

In the first meeting with new DP chief Kim Min-seok Monday, Jang said, “Setting aside party lines, the National Assembly has a function to check the executive branch,” and raised the issue of Chief Justice Jo’s justice recommendations.

The PPP in turn has accused Lee of trying to get acquitted from his five criminal trials related to allegations of corruption and North Korea remittances through packing courts with liberal judges. 

What is the Supreme Court’s stance?

The Supreme Court also appears to be considering the possibility that the president might reject the nomination.

"At a time when the judicial system is undergoing significant change, the value of the 'rule of law' — which curbs the arbitrary exercise of state power and protects the freedoms and rights of the people — is more precious than ever,” Jo said at a lawyers’ conference hosted by the Korean Bar Association. "The courts have a duty to substantively uphold the rule of law by strictly exercising the judicial power entrusted upon them by the people in accordance with the Constitution, the law and public conscience."

It is reported that the Supreme Court is considering a plan to receive candidate nominations again if the Blue House requests a re-recommendation.

Court Administration Office head Noh stated at the National Assembly Legislation and Judiciary Committee last Wednesday that the “appointing authority can refuse the appointment,” noting that in such a case the “candidate must be selected again.” He pointed out that “a legal review is necessary to determine whether to re-select one of the four existing candidates or to proceed with a new process since that procedure has concluded.”

If the president rejects the nomination, Judge Son could become the first Supreme Court justice nominee to be rejected before even holding a confirmation hearing.

Looking at precedents, justice nominee Kim Byung-hwa voluntarily stepped down ahead of the National Assembly vote in July 2012 and the Supreme Court reconstituted the Judges Personnel Committee within two weeks to select a new candidate. Kim still underwent a parliamentary confirmation hearing amid various allegations of corruption in a savings bank investigation. 

Chief justice nominees Chung Ki-seung in 1988 and Lee Gyun-ryong in 2023 were rejected because their confirmation motions were voted down in the National Assembly, where the opposition held a majority.

If the president rejects the nominations, what will happen to the vacancy on the top court bench?

The five-month vacancy since Justice Rho’s retirement is expected to be prolonged. Typically, it takes more than two months just to receive nominations, form the personnel committee and narrow down the short list to four candidates.

If both sides fail to reach an agreement on the next Supreme Court justice candidate at the nomination stage, there is a possibility that the cycle of nominations and rejections will repeat itself. Justice Lee Heung-gu is also set to retire on Sept. 7. 

There are also concerns that the vacancy may not be filled before Chief Justice Jo retires in June next year. Prolonged vacancies in the top court could delay trials, hinder the judicial process and damage public trust.

BY SARAH KIM [[email protected]]