[fn Plaza] Lost 'Supreme Court Justice Nomination'

Chief Justice Cho Hee-dae’s commemorative address on "Court Day" on the 11th was profound. Court Day is a celebration of the judiciary’s birth and a day to reflect on its independence. Although it is originally scheduled for the 13th, the event was moved forward because it falls on a Sunday. Chief Justice Cho stated that the rule of law can only be realized if the courts are not influenced by undue interference from other state agencies or political powers. Under normal circumstances, such remarks would likely have garnered little attention as they were merely general statements. They would not even be newsworthy enough to occupy the pages of major newspapers. However, the situation is different now, given the extreme tension between the Blue House and the Supreme Court over Supreme Court Justice nominees. It was just a few weeks ago that the Blue House requested a re-nomination for a nominee originally put forward by the Chief Justice, marking the first time in constitutional history that such a request was made. Sure enough, the Blue House reacted immediately to Chief Justice Cho’s remarks. Kang Yoo-jung, the Senior Spokesperson for the Blue House, stated, "We hope the re-nomination process will proceed promptly."
Article 104, Paragraph 2 of the Constitution stipulates that "Justices of the Supreme Court shall be appointed by the President upon the recommendation of the Chief Justice and with the consent of the National Assembly." The procedure for appointing Supreme Court Justices is conducted based on this constitutional provision. Looking solely at the wording of the article, the powers of recommendation, consent, and appointment are each equal. Noh Kyung-pil, Head of the Court Administration Office, also explained in his response to the National Assembly that "the Chief Justice makes a recommendation based on independent judgment, and the President and the National Assembly simply exercise the powers of appointment and consent, respectively." In this sense, Chief Justice Cho’s recommendation of Judge Son Bong-gi of the Daegu District Court as the successor to former Justice Noh Tae-ak, following the Supreme Court Justice Candidate Recommendation Committee, is legally valid. However, the problem lies in the fact that procedural deficiencies remain despite the legal completeness of the process. Historically, the Blue House and the Supreme Court have consulted when exercising the power of recommendation. This was a customary practice aimed at avoiding the catastrophic outcome of a presidential refusal to appoint, which would result from the unconditional exercise of the power of recommendation.
The stature of a Supreme Court Justice is far beyond what ordinary citizens can imagine. Their social and political influence is also immense. They are, in themselves, constitutional institutions. They constitute the Supreme Court, which is the nation's highest court and the ultimate guarantee of the protection of fundamental rights and the control of political power. Given this, one might expect that regardless of the administration, there has been a desire to exert greater influence over the appointment of Supreme Court Justices. Conflicts over the nomination of Justices occurred during the administrations of Roh Moo-hyun, Lee Myung-bak, and Yoon Seok-youl. Each side attempted to appoint figures who aligned with their own political leanings. Each time, the President and the Chief Justice merely patched things up by making concessions. Which side made the concessions varied from administration to administration. Mutual consultation—that was the established practice.
Naturally, a question arises here. Is it correct to prioritize custom over the Constitution? Especially when it comes to the Constitution. We frequently see instances where custom takes precedence over law. The ban on proportional representation lawmakers holding concurrent ministerial positions is not stipulated by law; it is merely custom that prevents this. The power of such custom was also at play in the resignation of Representative Yong Hye-in, the nominee for Minister of Gender Equality and Family.
It took 209 days from the formation of the Supreme Court Justice Nomination Committee to the nomination of a successor to former Justice No. The Blue House rejected that candidate. Did either side demonstrate political acumen during those seven months? That is what I want to ask. It remains to be seen whether the Supreme Court will form a new committee in response to the request for re-nomination, or re-nominate one of the existing candidates. That is entirely up to the Supreme Court's judgment.
Of course, I agree with the analysis that the intensity of the confrontation is high because this situation is a power struggle between the executive and judicial branches over increasing the number of Supreme Court justices. With the amendment of the Court Organization Act, the quota for Supreme Court justices will increase from the current 14 to 26. Three justices, including the Chief Justice, will be replaced next year, followed by five in 2028, six in 2029, and six in 2030. President Lee Jae-myung will appoint 22 new justices during his term. Even so, one cannot expect such conflict to be repeated every time a candidate for Supreme Court justice is nominated.
We must mutually acknowledge the necessity of established practices—in other words, political consultation. Korea's political landscape and economic environment, including polarization, are spiraling toward extremes. Divisiveness is also becoming the dominant trend in international affairs. If we only attempt to push through our own agendas, conflicts will only repeat themselves, and even maintaining the system will become difficult.
The law cannot define everything. There is certainly a space between laws. While the powers of nomination and appointment are stipulated in the law, there are important areas that must be filled through political consultation. That is what state affairs and politics are. Mutual respect is essential in this process. Practices accumulated over a long period are the legacy of democracy. If the supremacy of elected power is prioritized alone, it is difficult for these practices to function. If this is ignored, democracy struggles to operate normally, and the burden of the damage falls entirely on the people. We must consider how significant the impact of a single vacancy on the fundamental rights of the people is. Acceptance and restraint, rather than a winner-takes-all approach, are required.
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