Chief Justice Jo Hee-dae back at work after father's death

Cheong Wa Dae yet to submit confirmation request for nominee Son to National Assembly

Attention turns to whether Jo will re-nominate from existing pool or form new committee

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

Chief Justice Jo Hee-dae's return to work after his father's death has brought the simmering conflict between Cheong Wa Dae and the judiciary over Supreme Court justice appointments back to the fore.

Cheong Wa Dae submitted a National Assembly confirmation request for only one of the two nominees Jo had put forward — Senior Judge Kim Sung-su — while declining to proceed with the appointment of Senior Judge Son Bong-gi of the Daegu District Court. That decision placed the ball squarely back in Jo's court. Attention is now focused on whether he will re-nominate a different candidate from the existing pool or reconstitute the Supreme Court Justice Candidate Recommendation Committee from scratch. Either path is expected to deepen the fallout between the ruling camp and the judiciary.

Jo returned to work Thursday after completing his father's funeral, the Supreme Court said. He had stepped back from his duties after his father died Monday. The ruling camp had refrained from publicly pressing Jo while he was in mourning, but his return is expected to reignite the dispute in earnest.

Arriving at the Supreme Court on Thursday morning, Jo told reporters he was deeply grateful to everyone who had offered condolences. "We had hoped to hold a quiet family funeral, but it suddenly became quite a commotion — I feel sorry to the public for that," he said.

Asked whether he would re-nominate a justice candidate, Jo said he had not discussed the matter at all while away and would speak officially after reviewing developments. "I have not received any reports or had any discussions on this, so I will go in, hear how things stand, and then make an official statement," he said.

Jo had earlier submitted written nominations to President Lee Jae Myung, recommending Senior Judge Son as the successor to former Justice Noh Tae-ak and Senior Judge Kim Sung-su as the successor to Justice Lee Heung-gu, who retires Monday. Cheong Wa Dae subsequently decided not to submit a confirmation request to the National Assembly for Son while proceeding with the request for Kim — effectively rejecting one of the two nominations. On Friday, Cheong Wa Dae asked Jo to re-nominate as quickly as possible, saying it would "respect the recommendation committee's recommendations," signaling that it wanted Jo to choose someone other than Son from the pool the committee had recommended in January.

All eyes are now on what Jo will decide. Before his father's death, he told reporters on Friday evening that he was "reviewing the details" and would make an official announcement "once things are sorted out during the following week." Having returned from bereavement, he is expected to announce his position soon.

The difficulty is that current law provides no clear procedure for a situation like this. Article 41-2 of the Court Organization Act requires the chief justice to convene a recommendation committee each time a justice nomination is made. The committee must recommend at least three times the number of candidates to be nominated, and the chief justice must respect those recommendations when making nominations. The committee is considered dissolved as soon as it completes its recommendations.

However, the law is silent on what should happen when the chief justice nominates a candidate from the committee's pool and the president then declines to proceed with that candidate's appointment. Two competing interpretations have emerged: one holds that, since a nomination has already been made, a new committee must be formed and the entire process restarted from the public recommendation stage; the other argues that the existing committee's recommendations remain valid, allowing the chief justice to re-nominate from the remaining candidates.

If Jo opts to form a new committee, the clash between the ruling camp and the judiciary is likely to intensify sharply. The Democratic Party of Korea is already considering amending the Court Organization Act to bar the chief justice from forming a new recommendation committee when the president declines to appoint a nominated candidate — effectively codifying a requirement that the chief justice re-nominate from the existing pool.

Conversely, if Jo re-nominates from the existing pool, it would amount to acquiescing to Cheong Wa Dae's demand. Legal observers inside and outside the judiciary warn that allowing a precedent in which the president can reject the chief justice's nomination and demand a different one would erode the constitutionally guaranteed nomination authority of the chief justice.

A third option — that Jo refuse to accept Cheong Wa Dae's re-nomination demand altogether — is also being discussed. Under this approach, Jo would maintain that his original nomination of Son remains valid and press the president to submit the confirmation request to the National Assembly. Some have also raised the possibility of filing a jurisdictional dispute with the Constitutional Court, on the grounds that the president's refusal to submit the confirmation request infringes on the chief justice's constitutionally protected nomination authority.

Should that happen, the dispute over the justice appointment would escalate beyond a political and institutional standoff between the president and the chief justice into a full-blown constitutional conflict between state organs. The possibility cannot be ruled out that the Constitutional Court would be called upon, for the first time, to directly adjudicate the respective scope of the president's power to appoint Supreme Court justices and the chief justice's power to nominate them.


yg@heraldcorp.com