President Lee Jae Myung, right, greets Chief Justice Jo Hee-de during a meeting with the heads of the four constitutional institutions at the Blue House on June 8.NEWS1
Im Jang-hyuk
The author is a lawyer and the head of the political news department at the JoongAng Ilbo.
“Everything has gone wrong since May 1 of last year.”
That was the lament of a senior judge in private after President Lee Jae Myung on Aug. 28 took the unprecedented step of asking the chief justice to recommend another Supreme Court justice nominee.
On May 1, 2025, Chief Justice Jo Hee-de personally announced the Supreme Court’s full-bench decision to overturn an appellate acquittal of then-defendant Lee in his election law case and remand it to the Seoul High Court. The chief justice and president have each crossed the “invisible line” separating the three branches of government.
Defending Lee’s first rejection of a chief justice’s recommendation, the presidential office said that the power to recommend cannot replace the power to appoint. But it is not that simple.
Article 104(2) of the Constitution, cited by the ruling party, says that the president appoints Supreme Court justices upon the chief justice’s recommendation and the National Assembly’s consent. The provision originated in the 1972 Yushin Constitution. Previously, the Constitution explicitly required the president to appoint a justice upon recommendation. Given that the Yushin Constitution also allowed President Park Chung Hee to effectively select one-third of lawmakers, rendering parliamentary consent meaningless, Article 104(2) plainly carries an authoritarian legacy. That history clashes with postdemocratization interpretations that presidential appointment power is substantive.
But this interpretive conflict did not become political confrontation because presidents and chief justices exercised restraint since 1987. An informal process of “consultation” took root. However fierce the debate behind closed doors, presidents publicly respected the chief justice’s recommendation.
If another nominee is recommended and rejected, the result will be a president who controls the final procedural step, effectively nullifying the chief justice’s authority.
Why did Lee cross the line? Was it because Judge Kim Min-ki, whom the presidential office had favored but the chief justice did not recommend, was unquestionably the right choice? Or because Judge Son Bong-kie, whom the chief justice recommended but the presidential office rejected, had such serious shortcomings? Probably neither. The decision likely reflects intense distrust of the Jo court and fear that unless Lee begins reshaping the Supreme Court before Jo retires next June, judicial power could eventually stain his later years with a conviction based on prejudgment.
The May 1 ruling crystallized that fear.
Jo crossed the invisible line first. Just three days after Lee won 88.97 percent of the votes in the primary to become the presidential nominee of the main opposition party and clear election favorite, the judiciary thrust itself into the presidential race by issuing a remand pointing toward conviction. Judicial restraint was desperately needed.
The Democratic Party and its supporters then lost perspective. Baseless conspiracy theories, including claims of collusion between Jo and a Kim & Chang lawyer, were embraced as fact. That irrational current still courses through the ruling camp.
The Supreme Court’s only meager gain was shifting the burden of deciding whether proceedings should continue to lower courts. In 2006, the U.S. Supreme Court established the Purcell principle in Purcell v. Gonzalez, holding that courts should avoid changing election rules close to an election. If democracy demands judicial restraint over election rules near voting day, courts should be even more cautious about striking at a leading candidate’s Achilles’ heel.
Questions remain. Should rulings be delayed because someone is a presidential candidate? How close to an election is too close? Scholars and legal professionals must eventually reach an agreement. But one point is already clear: Once Lee became the presidential nominee, no further ruling should have occurred before the election.
Had Jo stopped then, leaving Lee room to believe that he could contest his innocence after his presidency, much might have unfolded differently. Perhaps Lee would not have crossed the line regarding the Supreme Court appointment, leaving a seat vacant. Perhaps he would not be unable to say that he will abandon his fixation on withdrawing prosecutions even while knowing it is driving down his approval ratings.
The conduct of both leaders recalls Montesquieu’s insight from 278 years ago in “The Spirit of the Laws” (1748): Experience shows that anyone with power tends to abuse it. And without separating judicial power from legislative and executive power, there can simply be no liberty.
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.
