Cheong Wa Dae and the Democratic Party of Korea are weighing responses to the situation involving a written recommendation of Supreme Court justice nominees. Despite considerable anger over the "Cheong Wa Dae bypass," it does not rise to a violation warranting impeachment. There is talk of the president sending back the chief justice's recommendation and demanding a new one, but there is no explicit rule. The longer the vacancies on the Supreme Court persist, the heavier the political burden on Cheong Wa Dae becomes.
A Cheong Wa Dae official on the 24th, referring to Chief Justice Jo Hee-de's recommendation of Supreme Court justice nominees for appointment, said, "The Supreme Court has played a move that even a 'ninth-dan in politics' would find hard to solve." The official added, "Unless Jo Hee-de steps down, whatever choice the president makes will be a bad move for the nominee, the party, and the political sphere," noting that the ruling camp is taking "time for deliberation."
Under Article 104, Paragraph 2 of the Constitution, Supreme Court justices are appointed by the president with the consent of the National Assembly upon the recommendation of the chief justice. Because the legislative, judicial, and executive powers are parallel under the Constitution, consultations have been customary. Typically, the chief justice met the president in person to convey views in advance and then exercised the right to recommend.
The National Court Administration explained that it submitted the recommendations in writing because Cheong Wa Dae did not provide an opportunity for a meeting for prior consultation. Cheong Wa Dae, however, says it never refused a meeting. It argues that Chief Justice Jo intentionally avoided an in-person meeting and pushed ahead with a written recommendation without properly going through consultation with Cheong Wa Dae.
For successors to former Justice Roh Tae-ak and Justice Lee Heung-gu, Chief Justice Jo recommended to President Lee Jae-myung the appointments of Son Bong-gi (60, 22nd class), a presiding judge at the Daegu District Court, and Kim Sung-su (57, 24th class), a presiding judge at the Seoul High Court. The two sides have effectively agreed on Judge Kim. Judge Son is regarded within the judiciary as having a pronounced conservative bent, and Cheong Wa Dae is opposed.
◇ Requests to return or re-recommend not in law… "could become a game of chicken"
Within Cheong Wa Dae, one option under discussion is to send the consent request to the National Assembly back without submitting it and demand a re-recommendation. In effect, the recommendation would be returned even before seeking the assembly's consent. This is based on the ruling camp's claim that "the president's appointment power is higher than the chief justice's recommendation power," but it could face accusations of violating the separation of powers and unconstitutionality. The power to recommend Supreme Court justice appointments is an independent authority granted to the chief justice by the Constitution.
Even if a re-recommendation is sought, Chief Justice Jo could recommend the same person again. There is no legal procedure or basis to sanction this. If Cheong Wa Dae again returns the recommendation and the chief justice resists, the vacancies on the Supreme Court will grow longer. This is the scenario Cheong Wa Dae and the Democratic Party most want to avoid. As housing and financial policies drag down the president's approval rating, being trapped in a "game of chicken" frame would only deepen the impression that politics is fixated on infighting instead of people's livelihoods.
Attacks over the president's judicial risk could also intensify. During the last presidential election, Chief Justice Jo remanded President Lee Jae-myung's Public Official Election Act case with a ruling in favor of guilt. The opposition views pressure on the chief justice as "retaliation" and is waging a public opinion battle. A key ruling-party official said, "Even if it is returned, the Supreme Court could recommend the same person again," adding, "It becomes a wasteful emotional fight, and the longer it drags on, the less there is to gain. The president will be agonizing over this as well."