Why not go to the Constitutional Court if it is unconstitutional?

Lee Hyun-sang

The author is a columnist at the JoongAng Ilbo.

“The view that the chief justice’s power to recommend a nominee takes precedence over the president’s appointment authority is unconstitutional.” That was the response from a Blue House official.

“It is essentially insurrectionary in nature. It is an ember left from an unprecedented insurrection,” Democratic Party (DP) leader Kim Min-seok said.

Those reactions followed Supreme Court Chief Justice Jo Hee-de’s refusal to comply with the Blue House’s request to recommend another nominee to the Supreme Court. The rhetoric is heated, but the actions tell a different story. The Blue House says it is not considering a jurisdictional dispute before the Constitutional Court, while the DP leadership remains cautious about impeachment.

Why the hesitation? Public opinion may be one reason. A New Daily-Researchwell poll found 52.6 percent saying the request for a new recommendation undermined judicial independence. A Reform Institute survey found 55.3 percent calling the request an improper response. One or two polls cannot be generalized, but they suggest public unease.

More fundamentally, the ruling camp may be uncertain of the legal outcome. Jo’s reason for refusing is simple: The document requesting a new recommendation stated neither a specific reason nor a constitutional basis. The Blue House counters that it had already explained that the original recommendation lacked procedural completeness because it came without substantive consultation.

But no law requires consultation with the president before a recommendation. Prior consultation is a convention intended to prevent clashes. Breaking convention may be regrettable, but whether that creates a legal defect, gives the president a right of refusal and obliges the chief justice to recommend someone else are separate questions.

Underlying the Blue House argument is the view that elected authority takes precedence over appointed authority. The president is directly elected, while the chief justice is appointed by the president with National Assembly consent. But election does not give one constitutional institution authority over another.

The historical circumstances were different, but Nazi Germany also moved toward dictatorship after becoming the largest party and using the Enabling Act to effectively transfer legislative powers to Adolf Hitler’s cabinet. The lesson is the danger of treating electoral legitimacy as unlimited authority.

There is precedent for asking the Constitutional Court to settle institutional conflicts. When acting President Choi Sang-mok withheld the appointment of Ma Eun-hyuk, whom the National Assembly had selected as a Constitutional Court justice, the Assembly sought adjudication of a jurisdictional dispute. The court ruled that Choi’s inaction violated the Assembly’s constitutional authority to form the court. The appointment structures for Constitutional Court and Supreme Court justices differ. That is precisely why a Constitutional Court ruling is needed now.

The problem would have been simpler had the Blue House sent Son Bong-kie’s motion for confirmation to the National Assembly. If lawmakers rejected him, the nomination process could have restarted. Instead, the Blue House withheld the motion and requested another recommendation, creating an unprecedented situation.

The boundaries among the president’s appointment authority, the chief justice’s recommendation authority and the Assembly’s role can no longer be patched over by convention. If the chief justice’s action is unconstitutional, file a jurisdictional dispute. If it is insurrectionary, pursue impeachment and argue the law before the Constitutional Court. That would be more forthright than scrutinizing the chief justice’s arrival times and official expenses or lecturing him about “human decency.”

The worst option is to drag the dispute out until Jo retires. If his successor resumes “prior consultations” with the president, that chief justice could face accusations of accepting a demand that his predecessor rejected, embroiling the judiciary in another independence controversy.

Moreover, with the Supreme Court's expansion, Lee will appoint more than 20 justices during his term. If the boundary between recommendation and appointment remains blurred, clashes will recur, and judicial independence will be repeatedly tested.

One final point: If this dispute reaches the Constitutional Court, Justice Oh Young-jun, whose spouse is Judge Kim Min-ki, reportedly favored by the Blue House, should recuse himself. Regardless of whether statutory disqualification applies, avoiding doubts about impartiality should come first.