Supreme Court Chief Justice Jo Hee-de rejected the presidential office's request to renominate a Supreme Court justice candidate, saying there was "no constitutional basis" for the request, drawing a sharp rebuttal from the presidential office, which said the court had "distorted the facts." The clash between the executive and the judiciary stems from a dispute between two independent branches over the scope of the powers each holds — the president's power to appoint and the chief justice's power to nominate. With both sides emphasizing their constitutional authority, concerns are growing that the standoff over filling the Supreme Court seat could drag on. The ruling and opposition parties have joined the fray, adding to the fallout.
Jo said on the 22nd that he could not comply with the presidential office's request, saying he "could not find specific constitutional grounds or reasons to justify a renomination request." His response came 25 days after the presidential office on Aug. 28 effectively returned his nomination of Son Bong-gi as a Supreme Court justice and asked for a new candidate. Jo announced his refusal shortly after President Lee Jae-myung departed on a trip to the United States and Mexico, further escalating tensions with the presidential office.
The presidential office issued two statements in response, saying the court's announcement "distorted the facts as if the president's renomination request were flawed for failing to observe the constitutional requirements of written form and countersignature." It noted that appointments of chief justices and Supreme Court justices have until now been made with only the prime minister's countersignature, adding that the court's position "denies the validity of all such past appointments." The office also said it was "hard to gauge the intent behind the chief justice alone claiming not to know the reasons for the return, which the public all understands." The remark signaled suspicion that Jo, while citing constitutional grounds, was in fact acting for political purposes.
The legal question is whether the president's appointment power also includes the authority to return a candidate already nominated and to demand the nomination of someone else. 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. It contains no separate provision on whether the president may decline a nominated candidate or demand a renomination.
Legal scholars are divided. Jeon Sang-beom, an attorney at the law firm Logos and a former senior judge, said that "even if the president's appointment power is a substantive one, it cannot be taken as automatically including a power to return a candidate or to demand a renomination, neither of which is provided for in the Constitution." Lim Ji-bong, a professor at Sogang University Law School, took the opposite view, saying the president's power to appoint Supreme Court justices "is a substantive appointment power, not a formal one, and therefore allows the president to demand a renomination."
The presidential office and the ruling bloc argue that the president's appointment power should take precedence, citing the legitimacy of elected power. Cho Kuk, head of the Rebuilding Korea Party's policy research institute and a former law professor, said nomination "is a precondition for the president's constitutional act of appointment, not an independent decision-making power in itself," adding that "the president's appointment power is a constitutional authority delegated directly by the people." A presidential office official also said that "arguing the president must appoint whomever the chief justice nominates would nullify the appointment power of a president elected by the people."
Politicians on both sides took up the respective arguments in a heated exchange. Members of the National Assembly's Legislation and Judiciary Committee from the ruling bloc, including the Democratic Party, the Rebuilding Korea Party and the Progressive Party, said at a press conference at the National Assembly that the refusal amounted to "a grave breach of the separation of powers and judicial overreach," calling it a "political act." Democratic Party leader Kim Min-seok said Jo was "an absurd chief justice," asking whether "it is constitutional when he does it but unconstitutional when the president does it."
The People Power Party, by contrast, defended Jo and told the Democratic Party to "stop destroying the Constitution." People Power Party leader Jang Dong-hyuk, a former judge, held a press conference and said Jo's refusal "was a natural decision under the Constitution," arguing that "the demand for a renomination is itself a violation of the Constitution." Independent lawmaker Han Dong-hoon said Lee "is insisting he can keep rejecting candidates until one suits him."
With the presidential office and the Supreme Court at odds, the vacancy on the bench is expected to persist. Options cited for resolving it include the presidential office accepting Son's nomination and submitting a confirmation motion to the National Assembly, or Jo nominating a different candidate, but both appear nearly impossible under the current political configuration. The seat has now been vacant for more than 200 days since the retirement of former Supreme Court Justice Noh Tae-ak, and with the remaining justices already carrying heavy caseloads, concerns are mounting that the added burden could delay reviews of appeals.
