Jo says re-nomination request lacks constitutional basis; presidential office calls refusal unconstitutional

Vacancy left by former Justice Noh Tae-ak stretches past 200 days, raising concerns over appeals backlog

Chief Justice Jo Hee-dae speaks at a luncheon hosted by President Lee Jae Myung for the heads of the five constitutional bodies at the presidential office in Yongsan in December last year. [Yonhap]
Chief Justice Jo Hee-dae speaks at a luncheon hosted by President Lee Jae Myung for the heads of the five constitutional bodies at the presidential office in Yongsan in December last year. [Yonhap]

Chief Justice Jo Hee-dae's formal rejection of the presidential office's demand that he re-nominate a Supreme Court justice candidate has turned a simmering dispute between the judiciary and the ruling camp into an open confrontation.

Jo insists the re-nomination demand has no constitutional basis, while the presidential office counters that his refusal effectively nullifies the president's constitutionally guaranteed power to appoint justices. With both sides invoking the Constitution and neither showing signs of yielding, observers say the vacancy left by former Justice Noh Tae-ak — who retired in March — will stretch even further beyond the 200 days it has already gone unfilled.

According to legal sources, Jo announced through a Supreme Court notice Tuesday that he could not comply with the presidential office's request for a re-nomination. The announcement came 25 days after the presidential office asked on Aug. 28 that he put forward a different candidate in place of Son Bong-gi, a senior judge at the Daegu District Court. Jo said that under the Constitution, official presidential acts must be carried out through documents countersigned by the prime minister and the relevant Cabinet minister, and that the Aug. 28 re-nomination request contained neither specific grounds nor any constitutional basis for the demand. "I can find no concrete constitutional basis or justification that would otherwise legitimize the re-nomination request," he said. "I therefore make clear that I cannot comply with it."

The presidential office fired back immediately after Jo's announcement, saying his position amounted to placing the chief justice's nomination authority above the president's appointment power — "a view that runs counter to the Constitution of the Republic of Korea." It also expressed "deep regret" over Jo's refusal to re-nominate a successor to Noh despite the president having returned his original nomination. Some observers had speculated that the presidential office might consider filing a competence dispute with the Constitutional Court over Jo's refusal, but the office moved quickly to shut down that possibility, saying in a press notice that day that it was "not considering" such a filing. A competence dispute is a mechanism by which the Constitutional Court authoritatively adjudicates disagreements between constitutional bodies over whether a power exists and what its scope is.

Legal circles had broadly expected Jo to choose one of two paths: nominate a different candidate from the existing pool of recommended names, excluding Son, or reconstitute the recommendation committee and restart the selection process from scratch. But with Jo flatly rejecting the re-nomination demand itself as constitutionally unfounded, analysts say neither option is likely to move forward anytime soon.

The vacancy in the seat formerly held by Noh is therefore expected to drag on even longer. With the Supreme Court and the presidential office at an impasse over how to interpret the Constitution's nomination and appointment procedures, some observers say the standoff could persist until Jo's own term ends. His term runs through June next year.

The prolonged vacancy is already placing a heavy burden on the court's operations. According to the 2025 Judicial Yearbook published last September, the Supreme Court handled a total of 54,951 substantive cases in 2024 — an average of 4,579 cases per justice among the 12 justices who carry a caseload, excluding the chief justice, who participates only in en banc rulings, and the court administrator, who does not hear cases.

The Supreme Court handles most appeals through three small panels of four justices each. As of Saturday, following the inauguration of Justice Kim Seong-su, the First and Second Panels each had their full complement of four justices, but the Third Panel had only three — Justices Oh Seok-jun, Eom Sang-pil and Lee Suk-yeon. Under the Court Organization Act, a panel of three or more justices may hear cases, but the vacancy inevitably shifts a greater share of the caseload onto the remaining justices.

High-profile cases are also piling up before the en banc court, which includes all justices except the chief justice and the court administrator. The Supreme Court has referred to the en banc court the case against first lady Kim Keon Hee on charges including stock-price manipulation involving Deutsch Motors. Cases against former Prime Minister Han Duck-soo and former Minister of Interior and Safety Lee Sang-min on insurrection charges have also been sent to the en banc court. In en banc proceedings, justices sometimes refrain from calling a vote when the outcome is unlikely to be unanimous or overwhelmingly one-sided, as reaching a conclusion with a vacant seat is seen as inappropriate.


yg@heraldcorp.com