The presidential office has decided not to send to the National Assembly a motion seeking consent for Son Bong-ki, chief judge of the Daegu District Court, who was nominated to succeed former Supreme Court Justice Noh Tae-ak. Presidential Chief Spokesperson Kang Yu-jung said on the 28th that "the nomination of candidate Son did not sufficiently meet the requirements of procedural completeness," and asked Supreme Court Chief Justice Jo Hee-de to submit a different candidate. The presidential office argues that the chief justice broke with precedent by nominating Son unilaterally in writing without consulting the presidential office, a procedural defect. It is the first time in the country's constitutional history that a president has turned back a chief justice's nomination for the Supreme Court.
This unprecedented demand for a fresh nomination is certain to deepen the rift between the presidential office and the judiciary and to sharpen the confrontation between the ruling and opposition parties. Article 104, Paragraph 2 of the Constitution provides that Supreme Court justices are appointed by the president, on the nomination of the chief justice and with the consent of the National Assembly. Strictly speaking, a nomination made in writing is not itself a violation of the Constitution. The National Court Administration, moreover, asserts that the process was legitimate, saying it "agreed on the written nomination with the presidential secretary for civil affairs." Both sides are disputing the facts and framing the case to suit their own interests.
The greater concern is that the episode is highly likely to degenerate into a tool of partisan warfare. The ruling party is already considering legislation that would allow a new nomination to be drawn from the remaining candidates chosen by the existing recommendation committee, without forming a new one. Under the current Court Organization Act, a recommendation committee is regarded as dissolved as soon as it completes its work. That is why legal experts point out that if nominations and rejections are repeated as the ruling party intends, the outcome will inevitably be a candidate favored by the presidential office.
Above all, the damage to the separation of powers is worrying. The chief justice's power to nominate Supreme Court justices has been rendered all but meaningless, and no consent procedure in the National Assembly took place. In particular, the presidential office's view that "the president is the representative of the people, and the chief justice is appointed by the president with the consent of the National Assembly" risks creating the misimpression that elected power stands above appointed power. President Lee Jae-myung will name 22 of the 26 justices on an expanded Supreme Court during his term. If the nomination power is exercised in this fashion, the possibility cannot be ruled out that the court will be filled with figures to the liking of the government. To reduce the conflict surrounding these appointments and the harm to the public, reforms that raise the fairness and transparency of the appointment process must be pursued without delay.
