Lee and chief justice should exercise restraint before a vacancy becomes institutional paralysis
A constitutional clause can endure decades of political change until two institutions treat its silence as an invitation to fight. That is precisely where South Korea stands today, with the presidency and the Supreme Court locked in an intractable dispute over a single vacant seat.
The seat opened when Justice Rho Tae-ak retired in March. More than seven months later, it remains empty.
Chief Justice Jo Hee-de has refused President Lee Jae Myung’s request for a fresh recommendation after Jo nominated Son Bong-gi, a senior judge at the Daegu District Court, in August.
The presidential office has cited procedural shortcomings. Jo says the Constitution provides no basis for returning his recommendation.
The dispute centers on Article 104 of the Constitution, which says Supreme Court justices are appointed by the president with the National Assembly’s consent after a recommendation by the chief justice.
It does not say what happens when the president objects to a recommendation or when the chief justice rejects a request for another one. Nor does it provide a procedure for resolving such a disagreement before the nomination reaches the Assembly.
That omission has turned a routine appointment into a contest over constitutional authority. Jo argues that the recommendation is a constitutionally protected function of the judiciary and that presidential intervention will weaken judicial independence. The presidential office points to the president’s final appointment authority and the democratic legitimacy conferred by an elected executive.
Both positions have legal logic. Neither offers a clear way out.
On Tuesday, the parliamentary audit made matters worse. Jo declined to take the witness oath, invoking separation of powers, while ruling party lawmakers pressed him over his refusal to make a new recommendation.
The hearing became another arena for a dispute that belongs in institutional dialogue, not partisan theater. Public confrontation may satisfy political constituencies, but it is a poor substitute for a workable constitutional process.
There is a deeper problem. For years, chief justices and the presidential office have consulted one another over Supreme Court nominations even though such consultations are not expressly required by the Constitution. That practice helped bridge the gap between two powers whose terms do not coincide.
Once mutual trust evaporates, however, an unwritten convention can disappear almost overnight.
The consequences are borne by people who have no role in the standoff. A prolonged vacancy places additional strain on the top court and can delay decisions, while the spectacle of the nation’s highest judicial and executive offices disputing their respective powers weakens confidence in institutions that depend on public trust.
Both sides need to step back without pretending that their constitutional concerns have vanished. Cheong Wa Dae could withdraw its demand for a fresh recommendation and allow the existing nomination to proceed to the Assembly.
If that proves impossible, the nominees could voluntarily withdraw, allowing the recommendation process to restart. Such a reset would preserve the distinction between presidential appointment and judicial recommendation without requiring either side to claim capitulation.
If compromise fails, the Constitutional Court offers a constitutional avenue through an agency dispute over the scope of institutional powers. A ruling could establish a standard for future appointments rather than leaving every change of government to reopen the same quarrel.
The Constitution divides power precisely so that no single authority commands the entire process. That design requires each branch to recognize where its mandate ends. Seven months of vacancy have shown the cost of treating constitutional boundaries as contests to be won.
President Lee and Chief Justice Jo should find a way to put the appointment back where it belongs: within the constitutional process, rather than above it.
khnews@heraldcorp.com