Chief Justice Jo Hee-dae speaks at a meeting between President Lee Jae Myung and the heads of the four branches of government held at Cheong Wa Dae on June 8. [Yonhap]
Chief Justice Jo Hee-dae speaks at a meeting between President Lee Jae Myung and the heads of the four branches of government held at Cheong Wa Dae on June 8. [Yonhap]

The long-standing practice governing how South Korea selects its Supreme Court justices has come under scrutiny after Chief Justice Jo Hee-dae submitted his nominations for two vacant seats in writing — without meeting President Lee Jae Myung in person. Friction between a sitting president and a chief justice appointed by a previous administration is not without precedent, but a written nomination submitted before the two sides reached any agreement is widely regarded as unprecedented.

The episode has brought into sharp focus the question of how far — and in what form — pre-nomination consultations between the president and the chief justice should extend. With similar clashes possible at any time, and the Supreme Court bench set to expand sharply from 2028, legal experts say the selection process, long governed by informal convention, needs clearer and more transparent rules.

Written nomination fallout: 'bypassing the president' vs. chief justice's sole prerogative

Debate over Chief Justice Jo's written nomination continued to reverberate through political and legal circles. Jo nominated Son Bong-gi, a senior judge at the Daegu District Court, to succeed former Justice Noh Tae-ak, who retired in March, and Kim Seong-su, a senior judge at the Seoul High Court, to succeed Justice Lee Heung-gu, who retires next month. Jo submitted both nominations to President Lee in writing on Tuesday.

The move was unusual because Jo bypassed the customary face-to-face meeting with the president. Under the established practice, Cheong Wa Dae and the Supreme Court would align their views on candidates before the chief justice met the president and formally submitted the nomination.

Particularly striking was that the written nomination came after months of deadlock over the successor to Justice Noh. A Supreme Court judicial nomination committee had narrowed the field to four candidates in January and forwarded them to Jo, but no nomination followed. The two sides could not agree because the presidential office and the Supreme Court each had a different first-choice candidate.

Article 104, Paragraph 2 of the Constitution states that Supreme Court justices "shall be appointed by the president upon the recommendation of the chief justice and with the consent of the National Assembly." The Court Organization Act contains the same provision. The appointment process requires the interlocking authority of three parties: the chief justice's nomination, the Assembly's consent, and the president's appointment. However, neither the Constitution nor any statute specifies how the chief justice must submit a nomination to the president, or what consultations must precede it.

That legal gap has produced sharply divergent readings of the current dispute. Within the ruling camp, criticism has mounted that Jo acted unilaterally without adequate consultation with the president, who holds the appointment power — in effect bypassing him. On the other side, some argue that the chief justice's nomination right is a constitutional prerogative granted to safeguard judicial independence, and that prior consultation with the president is not a legal requirement.

Chief Justice Jo Hee-dae arrives at the Supreme Court in Seocho-gu, Seoul, on Friday. [Yonhap]
Chief Justice Jo Hee-dae arrives at the Supreme Court in Seocho-gu, Seoul, on Friday. [Yonhap]

Past disputes were resolved before nominations proceeded — this time they were not

Some in the legal community read Jo's choice of a written nomination as a deliberate signal: a move to assert the chief justice's constitutional nomination right and prevent the customary pre-nomination consultations from becoming a mechanism that constrains it.

Disagreements between presidents and chief justices over Supreme Court appointments are not new. In 2003, after the launch of the Roh Moo-hyun administration, then-Chief Justice Choi Jong-young — appointed under President Kim Dae-jung — clashed with Cheong Wa Dae over a successor nomination. In 2023, then-Chief Justice Kim Myeong-su, appointed under the Moon Jae-in administration, and the Yoon Suk Yeol presidential office were at odds over successors to former Justices Jo Jae-yeon and Park Jeong-hwa.

In each of those cases, however, the two sides ultimately found common ground before the nomination and appointment proceeded. That is precisely why Jo's decision to submit a written nomination while the disagreement remained unresolved stands out as exceptional.

The concern now is that this episode may not be a one-off. Because the scope and form of pre-nomination consultations have never been formally defined, the written nomination risks becoming a new precedent — one that could trigger fresh disputes over consultation and procedure every time the president and chief justice diverge on a candidate.

The looming expansion of the Supreme Court makes a repeat confrontation even more likely. The bench, currently 14 including the chief justice, is set to grow to 26 in stages from 2028. Combined with vacancies arising from the expiration of existing justices' terms, President Lee stands to appoint as many as 22 justices during his presidency — a concentration of Supreme Court appointments unmatched by any previous administration. With that many nominations ahead, the informal consultation arrangements that have long governed the process could reignite conflict at any moment.

The underlying tension remains — experts call for greater transparency

Legal experts say the episode should prompt a broader effort to make the entire selection process — from the nomination committee's deliberations through to the final appointment — more transparent. Under the current system, the judicial nomination committee narrows the field to three or four times the number of vacancies and forwards the list to the chief justice, who then nominates a final candidate to the president. The committee's internal deliberations and the chief justice's selection process are largely opaque to outsiders. Article 41-2, Paragraph 1 of the Court Organization Act establishes the committee at the Supreme Court to recommend candidates for the chief justice to nominate, and delegates the rules on its composition and operation to Supreme Court regulations — regulations that bar disclosure of meeting procedures and content, and prohibit current and former members from revealing confidential information learned in the course of their duties.

The pre-nomination consultations between the president and the chief justice are governed by no written rules at all. Because the process relies on convention rather than any formally prescribed procedure, there is no clear standard for how those consultations should be conducted or how far they should go. If the president's preferences weigh too heavily in the consultations, the chief justice's constitutional nomination right may be seen as compromised; if a nomination is submitted with no consultation at all, the president's appointment power risks becoming a formality. Experts say procedural safeguards are needed that protect each party's constitutional authority while making the selection process more transparent.

Han Sang-hee, a professor at Konkuk University School of Law, said in a phone interview that "the representativeness of the nomination committee's composition and the transparency of its deliberations need to be strengthened." He added that committee members who participate as representatives of academic or civic organizations "should not simply express their personal views — they should at least go through a process of consulting with senior officials within their respective organizations," and that procedures should be put in place to ensure members approach the work with greater accountability. Han also said that while consultations between the chief justice and the president are desirable in principle, "the problem is that they take place behind closed doors," adding that "if the two sides sit down together, at least a record of that meeting should be kept."


yg@heraldcorp.com