The presidential office said on the 28th that it will not submit to the National Assembly a consent motion for Son Bong-gi, a senior judge at the Daegu District Court who had been nominated to succeed former Supreme Court Justice Noh Tae-ak. Citing "procedural completeness," it returned the nomination made by Chief Justice Jo Hee-de. It is the first time since 1958, under the Rhee Syng-man government, that a president has rejected the judiciary's nomination of a Supreme Court justice.
Kang Yu-jung, senior presidential spokesperson, said at a briefing that day that the office had "asked the chief justice to submit a new nomination for a Supreme Court justice." By contrast, the office decided to send the National Assembly a consent motion for Kim Sung-soo, a senior judge at the Seoul High Court nominated to succeed Justice Lee Heung-gu, on the grounds that the presidential office and the Supreme Court had reached agreement through consultation.
"The nomination of candidate Son did not sufficiently meet the standard of procedural completeness," Kang said. "The practice of consultation has served as a safeguard against the Supreme Court being composed at the will of only one side, either the appointing authority or the nominating authority. It is regrettable that the judiciary itself has weakened the basis that has sustained its independence."
Behind the demand for a new nomination was the judgment that Jo had undermined procedural legitimacy by acting unilaterally. Although the Supreme Court Justice Candidate Recommendation Committee put forward candidates in January this year, Jo delayed the nomination for more than seven months before submitting Son's name in writing on the 18th of this month. The presidential office has taken issue with the absence of substantive consultation with President Lee Jae-myung, who holds the appointment power, during that process.
Responding to criticism that no procedure for a renewed nomination exists, an official at the presidential office said the conclusion followed a legal review: "The appointment power itself implies substantive discretion to review, and as a power that is not subsumed under the chief justice's nomination power, it allows the president to request a new nomination." Kang also emphasized the president's appointment power, noting that "under Article 104, Paragraph 2 of the Constitution, Supreme Court justices are appointed by the president, on the nomination of the chief justice and with the consent of the National Assembly."
The official also said it had been confirmed in the National Assembly that shortly before Son's nomination, the National Court Administration had individually contacted candidates recommended by the committee to sound out the possibility of running the recommendation process again. "Sounding out a plan to exclude legitimately recommended candidates from nomination in itself damaged the fairness and credibility of the appointment process," the official said.
The People Power Party reacted with strong opposition. Members of the National Assembly's Legislation and Judiciary Committee from the party argued that "requesting a new nomination is the creation and exercise of a power that does not exist, and is unconstitutional in itself."
Concerns were also raised within the courts. A sitting judge who asked not to be named said that "Article 104, Paragraph 2 of the Constitution does not require prior consultation, and defines nomination and appointment as powers belonging separately to each institution." Another judge said there is "an awareness of the problem that the president's return of a nomination could hollow out the chief justice's nomination power."
Attention now turns to how Jo will respond. Among the candidates recommended by the committee, setting Son aside, those remaining are Seoul High Court judges Kim Min-ki and Park Soon-young and Seoul High Court senior judge Yoon Sung-sik. Yoon, however, has become effectively difficult to nominate after being named presiding judge of the bench dedicated to insurrection cases.
What the presidential office and the ruling party are asking of Jo is understood to be not the formation of a new recommendation committee and a restart of the candidate selection process from the beginning, but a renewed nomination of one of the existing recommended candidates, in consultation with the president. That is why Kim, reportedly the presidential office's preferred choice, is being mentioned. Asked whether the request for a new nomination was made with Kim in mind, however, the office said it was "not a confirmed matter."
Whether Jo will accept the demand from the ruling bloc is uncertain. He could refuse if he judges that a demand to nominate a particular candidate from among those already recommended, in consultation with the president, restricts the nomination power granted to the chief justice under the Constitution. Another burden is that this request could set a precedent requiring prior consultation between the president and the chief justice each time Supreme Court justices are selected in the future.
If Jo refuses, the Supreme Court will have to form a new recommendation committee and start again from the candidate selection stage. In that case, the conflict over the renewed nomination could spread beyond the selection of a justice into a full-blown clash between the executive and the judiciary. One senior judge advised that "rather than each side clinging to its existing position, it is more realistic to look for a third figure."
