Chief Justice Jo Hee-de speaks to reporters as he arrives for work at the Supreme Court in Seocho District, southern Seoul, on the morning of Aug. 21. The Blue House and the ruling Democratic Party have strongly protested Jo’s Aug. 18 recommendation of two candidates to replace retiring Supreme Court justices.NEWS1
Lee Hyun-sang
The author is a columnist at the JoongAng Ilbo.
Few countries give the head of the judiciary authority to recommend Supreme Court justices as Korea does. In the United States, nominations are entirely the president’s prerogative. Germany, Britain and France use independent bodies involving the government, legislature or judiciary. Japan has an established practice of respecting judicial views, but the Cabinet appoints justices without a formal recommendation.
Korea adopted the chief justice’s recommendation power out of fear of dictatorship. Founding President Syngman Rhee wanted broad appointment powers like those of the U.S. president. Kim Byung-ro, Korea’s first chief justice, insisted judicial recommendations were essential to the new republic’s judicial independence. Their dispute resulted in the 1949 Court Organization Act, which stipulated that the president appoint the chief justice and Supreme Court justices upon recommendation by a judges’ council.
The system was later distorted under the Yushin regime and the Fifth Republic, becoming a channel for political control of the judiciary. Recommendation authority shifted from a judicial council to the chief justice alone, enabling backroom deals between political and judicial leaders.
The 1987 Constitution consequently introduced National Assembly consent, while a 2011 revision of the Court Organization Act established the Supreme Court Justice Candidate Recommendation Committee.
Supreme Court appointments thus became a delicate intersection of three powers: the chief justice’s recommendation, the legislature’s consent and the president’s appointment authority. Ambiguous boundaries were bridged by an informal convention of prior consultation.
But the clash between the Blue House and Chief Justice Jo Hee-de over the recommendation of Daegu District Court Chief Judge Son Bong-gi shows that this gentleman’s agreement has collapsed.
The Blue House has signaled opposition to Son, citing violation of convention, while indicating it will accept Seoul High Court Chief Judge Kim Sung-soo, recommended through the same process. That raises suspicions that procedure is merely a pretext. Is the real complaint that Kim Min-ki, a Suwon High Court judge favored by the Blue House, was eliminated? Judicial concerns about a potential conflict of interest involving Kim Min-ki, whose spouse is Constitutional Court Justice Oh Young-jun, cannot simply be dismissed.
With convention broken, the Constitution and law must prevail. The Blue House can return the recommendation and demand another, or send it to the National Assembly for consent. Either route could kill the nomination, but each sends a very different message about separation of powers.
Considering the constitutional principle of restraint in exercising power, seeking parliamentary consent is preferable. Returning the recommendation would inevitably deepen suspicions that the president is trying to tame the judiciary to reduce his own legal risks. Letting the Assembly decide would also reduce the political burden of a direct confrontation.
Some cite the United States to argue that elected leaders deserve primacy in Supreme Court appointments. But the comparison is misleading. U.S. justices serve for life, so a president appoints roughly two during a four-year term.
Korean justices, by contrast, serve six-year terms and retire at 70. A president appoints more than 10 on average during a five-year term. If the planned expansion of the Supreme Court proceeds, President Lee Jae Myung could appoint 22 justices during his term — 85 percent of a 26-member court.
Without restraint by the country’s most powerful officeholder, separation of powers could be structurally undermined.
Chief Justice Jo reaches mandatory retirement age next June. His successor will be appointed directly by the president without going through a recommendation committee.
If the current administration is already putting such intense pressure on the judiciary’s leader over a single Supreme Court nomination, there is ample reason to worry about the judiciary’s standing after the next chief justice takes office.
This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
