Supreme Court Chief Justice Jo Hee-de has formally refused the Presidential Office's request to renominate a candidate for the Supreme Court, prompting the office and the ruling bloc to intensify pressure on the judiciary. Given Jo's record of prioritizing law and principle despite repeated pressure from the Presidential Office and the ruling bloc, most observers expect the standoff with politicians to continue for some time.
On the 22nd, Jo said the only document related to the request was the Presidential Office's "request for renomination of a Supreme Court justice candidate," which did not state the specific grounds for the request or its constitutional basis. "I can find no other specific constitutional basis or grounds that would justify the renomination request," he said. The message was that he could not comply because the Presidential Office had not presented specific grounds or a constitutional basis for demanding a new nomination.
An official at the National Court Administration said the statement could be read as leaving room for a next step if the Presidential Office sends an additional official letter specifying the grounds and legal basis. Taken literally, the refusal rests on the absence of specific grounds and constitutional basis in the document requesting renomination. Conversely, it can also be interpreted to mean that follow-up action could be considered if such grounds were provided in writing.
Article 104, Paragraph 2 of the Constitution states that Supreme Court justices are appointed by the president, on the nomination of the chief justice and with the consent of the National Assembly. There is no provision on whether the president may decline a nominated candidate, whether the president may demand a new nomination, or whether the Supreme Court must accept such a demand. The absence of specific grounds and a constitutional basis justifying renomination in the Presidential Office's document also formed the basis for the Supreme Court's refusal. The prevailing view in the legal community is that the Constitution should be read as granting the nomination power to the chief justice as an exclusive authority precisely to prevent the president from designating and nominating a particular candidate.
The Presidential Office, however, argues that its appointment power is not being respected. It contends that nominating a candidate without substantive consultation with the president and then demanding an appointment reduces the appointment power to a formality.
Lim Ji-bong, a professor at Sogang University Law School, said there have been many past cases in which the person the chief justice intended to nominate differed from the person the president wanted to appoint. "Although it is not written into the Constitution, that process of coordination has become a constitutional practice," the professor said, adding that constitutional practice is also part of the constitution in the substantive sense.
Contrary to the message contained in Jo's refusal on constitutional and legal grounds, the Presidential Office and the ruling bloc have reacted strongly. The Presidential Office expressed regret the same day, criticizing the chief justice's statement as asserting that the chief justice's nomination power ranks above the president's appointment power, which it called "a view that violates the Constitution of the Republic of Korea." It added that the stance "nullifies the appointment power of a president elected by the people," and urged the court to "face the fact that a prolonged vacancy on the Supreme Court comes back as harm to the public."
Cho Kuk, head of the Rebuilding Korea Party's innovation policy institute, said on the 25th that the issue must be settled once President Lee Jae-myung returns from abroad. Cho said he had previously argued that Jo's refusal of the renomination request on the 22nd was an unconstitutional political act and that the National Assembly should exercise its authority to move swiftly toward abolishing the National Court Administration.
Some suggest that President Lee's instruction on the 24th to form a special investigation headquarters on the insurrection case, issued after the chief justice's refusal, was also aimed at Jo. Police plan to begin follow-up investigations based on records including unresolved cases handed over from the comprehensive special counsel.
Jo is unlikely to factor in such political pressure. In recent public appearances, the chief justice has unusually emphasized independence from political power. At a ceremony marking Judiciary Day on the 11th of this month, Jo said the freedom and rights of the people can be fully guaranteed and the rule of law realized only when courts adjudicate neutrally and fairly according solely to the Constitution and the law, free from improper interference or influence from other state institutions, political power and social forces, as well as from litigants. Jo's reference to "political power" and "other state institutions" at an official event was seen as unusual.
