Two Supreme Court seats now vacant as Justice Lee Heung-gu retires

Justice Lee Heung-gu retires Monday at ceremony in Seocho-gu

'Three judicial reform bills will fundamentally reshape the Supreme Court'

'Court failed to convey its position to public after martial law declaration'

Nominee Kim Sung-su faces confirmation hearing Sept. 14

Standoff over successor to former Justice Noh Tae-ak drags on

Chief Justice Jo weighs re-nomination or fresh selection panel

Justice Lee Heung-gu delivers his farewell address at his retirement ceremony at the Supreme Court in Seocho-gu, Seoul, on Monday. [Yonhap]

Justice Lee Heung-gu retired Monday, leaving two seats on South Korea's Supreme Court vacant. Former Justice Noh Tae-ak stepped down in March, and his replacement has yet to be named after more than six months of deadlock between Cheong Wa Dae and the Supreme Court. Lee's departure made the double vacancy a reality.

Senior Judge Kim Sung-su of Seoul High Court, nominated to succeed Lee, has entered the National Assembly confirmation process. The Assembly's special committee on Supreme Court justice appointments is scheduled to hold a confirmation hearing for Kim on Sept. 14, followed by a plenary session on Sept. 16 to adopt the hearing report. A full Assembly floor vote on the appointment must still follow, meaning the two vacancies will persist for now.

Lee marked the end of his six-year term at a retirement ceremony Monday morning at the Supreme Court in Seocho-gu, Seoul. He was appointed in September 2020 by then-President Moon Jae-in on the recommendation of then-Chief Justice Kim Myeong-su. In his farewell address, Lee said the so-called three judicial reform bills "will fundamentally alter the trial system that has long been in place, as well as the Supreme Court's standing and structure." He added that while the legislative process had been "shocking and regrettable" for failing to reflect the judiciary's views, the court — as the body entrusted with judicial power by the sovereign people — bore a responsibility to review the entire system and actively lead change so that no citizen would suffer harm.

Lee said the judiciary must not forget that "the legislation was rooted in the public's longstanding grievances and distrust of the courts" — grievances stemming from trials perceived as unfair or inadequate, rulings that failed to grasp the realities of people's lives, and decisions that offered insufficient explanation. He said the direction of judicial reform should be to shed the remaining vestiges of authoritarianism and deliver more professional, transparent and persuasive rulings while showing greater respect for citizens' right to seek justice.

"The biggest problem I experienced at the Supreme Court over six years is that the justices and staff are trapped in a system overwhelmed by a flood of incoming cases," he said. As a result, he said, the court lacked the capacity to fulfill its role as the brain of the entire judiciary — identifying pressing legal questions of the era in a timely manner, setting standards swiftly, and carrying out its policy function by addressing both short- and long-term challenges.

Lee also said the Supreme Court must "boldly step back" from its current role of supplementing fact-finding, which was consuming too much of its capacity, and instead allow high courts to serve as the final arbiter of factual disputes, building a more professional and transparent appellate structure. "Properly defining the respective roles of the Supreme Court and the lower courts is the most urgent task the Supreme Court must resolve," he said.

Lee also reflected on the Dec. 3 emergency martial law declaration, saying he had come to feel strongly that "the Supreme Court failed — or was unable — to properly convey the judiciary's position to the public during a national crisis." He said earning public trust required communicating at the most critical moments, clearly explaining what judgments and resolve the judiciary held.

"That can be done through judicial rulings, and it can also be done through judicial administration," he said, adding: "We come to understand the sobering truth that if the court fails to speak when it must, it will gradually lose even the opportunity to speak."

Chief Justice Jo Hee-dae attends the retirement ceremony for Justice Lee Heung-gu at the Supreme Court in Seocho-gu, Seoul, on Monday. [Yonhap]

With two seats now empty, the burden on the Supreme Court's case deliberations has grown considerably. The court's justices — excluding the chief justice and the court administrator — are divided into three panels of four to handle most appeals. The prolonged vacancy left by former Justice Noh, compounded by Lee's retirement, has made it difficult to maintain existing caseload assignments. Lee belonged to the Third Panel, which was already down to three members after Justice Noh Kyung-pil was appointed court administrator in July. Lee's departure reduces the Third Panel to just two justices — half its full complement.

The strain on the Grand Bench, which requires all justices and is presided over by the chief justice, is also significant. The court is currently deliberating before the Grand Bench on charges against first lady Kim Keon Hee, including alleged stock price manipulation involving Deutsch Motors, as well as insurrection charges against former Prime Minister Han Duck-soo and former Interior and Safety Minister Lee Sang-min. The caseload is expected to grow further, as major cases brought by the three special prosecutor teams — covering insurrection, Kim Keon Hee, and the Marine Corps corporal — are expected to work their way through the lower courts and reach the Supreme Court in succession.

Lee's seat should be filled once Kim Sung-su's confirmation process concludes, but the delay in naming a successor to former Justice Noh is set to continue. Chief Justice Jo Hee-dae submitted written nominations to President Lee Jae Myung on Aug. 18 — recommending Senior Judge Son Bong-gi of Daegu District Court to succeed Noh and Kim Sung-su to succeed Lee. Cheong Wa Dae subsequently sent only Kim's appointment consent motion to the National Assembly, demanding that Jo re-nominate someone else for the Noh vacancy on the grounds that Son's nomination "lacked sufficient procedural completeness." The vacancy created by Noh's retirement in March has now stretched beyond six months with no end in sight.

The ball is back in Chief Justice Jo's court. Jo returned to work Thursday after completing funeral arrangements for his late father and signaled he would soon announce his position on the re-nomination question. The key question is whether Jo will re-nominate a different candidate from the pool already recommended by the existing Supreme Court Justice Candidate Recommendation Committee — bypassing Son — or convene an entirely new committee and restart the selection process from scratch.

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 nominee is to be put forward. 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 a nomination. The committee is deemed dissolved as soon as it completes its recommendations.

However, the law is silent on what happens when the chief justice has already nominated a candidate from the committee's pool and the president declines to proceed with the appointment. Two competing interpretations have emerged: one holds that because a nomination has already been made, a new committee must be formed and the entire process restarted; the other argues that the original committee's recommendations remain valid, allowing the chief justice to re-nominate from the remaining candidates. If a new committee is required, the vacancy will stretch even longer, as the full cycle of candidate solicitation, vetting and recommendation would have to be repeated.

yg@heraldcorp.com