The Supreme Court is taking longer than expected to respond to the Presidential Office's demand that it submit a new nominee for a vacant justice seat. The court, which had planned to announce its official position this week, decided to take more time for review. With the two sides locked in a hard-line confrontation over a written nomination and its rejection, voices inside and outside the judiciary say both need the courage to step back.
According to legal sources on the 5th, the Supreme Court said as of the previous day that it is "carefully reviewing the matter and will make an announcement once the review is complete," after the Presidential Office returned the nomination of Son Bong-gi, a senior judge at the Daegu District Court, and demanded a new candidate.
Chief Justice Jo Hee-de submitted written nominations to the Presidential Office on the 18th of last month, naming Son and Kim Sung-soo, a senior judge at the Seoul High Court, to succeed former Justice Noh Tae-ak and Justice Lee Heung-koo, respectively. The move broke with the customary practice under which the chief justice reports to the president in person after behind-the-scenes consultations.
Ten days later, on the 28th of last month, the Presidential Office announced it would submit only Kim's confirmation motion to the National Assembly. It returned Son's nomination, citing procedural problems including that the nomination had been made without prior agreement, and demanded a new nomination from the Supreme Court. Jo said the same day that he would announce an official position this week, but the review was delayed somewhat due to personal circumstances, including the recent death of his father, according to sources.
Noh retired in March. But with no agreement reached between the Presidential Office and the Supreme Court, no nomination was made for about seven months after the shortlist was drawn up. Four candidates made the final list for Noh's seat: Kim Min-ki and Park Soon-young, both high court judges at the Seoul High Court; Son; and Yoon Sung-sik, a senior judge at the Seoul High Court.
Sources inside and outside the judiciary said the Presidential Office's top choice was Kim Min-ki. The Supreme Court was reluctant, citing concerns about a conflict of interest involving Kim's spouse, Constitutional Court Justice Oh Young-joon, and proposed Park and others as a compromise before ultimately settling on Son, according to sources.
In the legal community, the prevailing view is that neither Jo's written nomination nor the Presidential Office's demand for a new nominee poses a legal problem in itself. Under Article 104 of the Constitution, Supreme Court justices are appointed by the president with the consent of the National Assembly, upon nomination by the chief justice. The provision does not make either side's authority subordinate to the other's.
A senior judge at a court in the greater Seoul area said the issue "should be seen not as a question of whether the president's appointment power or the chief justice's nomination power takes precedence, but as a constitutional intent that the two exercise their respective powers to achieve checks and balances." The judge added that "both sides should be seen as having exercised their own inherent authority." A senior judge said: "The Constitution stipulates only the respective powers of nomination and appointment, with no clear provision on what follows a rejection." The judge called it "a legally very complex matter."
Still, the dominant view is that the emergence of reports that the Presidential Office had a particular candidate in mind is itself problematic. A legal community official said that "even if the Presidential Office had no such intention, the mere appearance to the public that it has a particular candidate in mind is a problem." The official stressed that "the constitutional intent is that selecting a Supreme Court justice should be a process in which the Presidential Office and the judiciary cooperate to find someone qualified to work impartially and fairly for the people."
With the Presidential Office having put the ball back in Jo's court, the chief justice faces another choice. Two options are most often mentioned: renominating one of the three remaining candidates other than Son, or forming a new Supreme Court Justice Candidate Recommendation Committee to select fresh candidates.
Nominating one of the three existing candidates would have the advantage of quickly filling the vacancy. Many read the Presidential Office's demand for a new nomination as a message to pick a different candidate from the existing pool. Inside and outside the judiciary, however, there is concern that if the court renominates from the same pool, the Presidential Office could keep rejecting nominees until it gets the person it wants.
For that reason, a considerable number of people argue it would be preferable to form a new recommendation committee and draw up a fresh pool of candidates. The Court Organization Act requires that a Supreme Court Justice Candidate Recommendation Committee of 10 members, including one chair, be formed each time the chief justice nominates a candidate.
Another senior judge at a court in the greater Seoul area suggested that "since the previous recommendation committee has already completed its work, a new committee should be formed to begin the recommendation process from scratch with new candidates." The judge added: "If either side keeps insisting on its existing position, the conflict will only grow. It would be desirable for both sides to step back and make an effort to find a third candidate."
