South Korea's presidential office demands renomination of Supreme Court justice candidate

In a move unprecedented since the current constitution was enacted in 1987, South Korea's presidential office has demanded that the Chief Justice renominate a candidate for the Supreme Court. The office asserts that the president's appointment power cannot be effectively limited by the Chief Justice's nomination right, signaling a significant assertion of presidential authority in judicial appointments.

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Nomination and appointment are powers distributed to different constitutional bodies according to the principle of separation of powers.

The presidential office's stance is rooted in the principle of separation of powers, arguing that the nomination and appointment of Supreme Court justices are distinct constitutional powers vested in different branches. A spokesperson stated that the nomination right should support, not supersede or neutralize, the appointment right, which inherently includes substantive review discretion. This interpretation suggests that the president is not obligated to accept a nomination without the possibility of requesting a renomination.

This dispute highlights a long-standing tension between the Supreme Court's emphasis on the independence of its nomination process and the presidential office's insistence on its substantive role in appointments. The presidential office specifically criticized the Chief Justice for nominating Son Bong-ki without substantive prior consultation, a practice that has historically been observed as a mutual respect between the branches. The office views this consultation as a procedural safeguard to prevent the highest court from being formed solely by the will of one branch and to uphold judicial independence.

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The president's appointment power itself inherently includes substantive review discretion. It is a power not subordinate to the Chief Justice's nomination right, and we have concluded, after legal review, that we can request renomination.

The presidential office also raised concerns about the fairness of the nomination process itself, questioning the Chief Justice's actions in seeking to re-initiate the recommendation process for candidates already vetted by the Supreme Court Justice Recommendation Committee. Furthermore, the office emphasized the importance of diversity in the Supreme Court's composition, suggesting that the current nomination may not align with the public's desire for a more diverse judiciary, particularly in protecting the rights of minorities and vulnerable groups.

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The prior consultations between past presidents and chief justices were based on the constitutional intent of mutual respect for the authority of each institution.

The political reaction has been sharply divided. The ruling party has voiced support for the presidential office's actions, deeming them necessary to uphold the principle of popular sovereignty. Conversely, the main opposition party has strongly condemned the move, labeling it a clear violation of the constitution and an infringement upon the separation of powers, accusing the president of undermining the judiciary and legislative branches.

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Asking individual candidates whether they would be excluded from the nomination list, right before nominating Son Bong-ki, undermines trust in the fairness of the personnel process.