ED When in doubt, follow the Constitution

When in doubt, follow the Constitution.

President Lee Jae Myung and Chief Justice Cho Hee-dae are at odds over the selection of a nominee for Supreme Court justice. Both sides accuse each other of violating the Constitution. To resolve the dispute, they should both carefully examine what the Constitution actually stipulates about the recommendation and appointment process, rather than interpreting it in ways that serve their respective interests.

Article 104, Paragraph 2 of the Constitution makes clear how Supreme Court justices are appointed. It states: “The Supreme Court justices shall be appointed by the president on the recommendation of the chief justice and with the consent of the National Assembly.”

This provision establishes distinct roles for the executive, legislative and judicial branches and reflects the principle of checks and balances in the appointment of Supreme Court justices. The chief justice recommends candidates, the National Assembly gives its consent and the president makes the appointment. The Constitution therefore gives each branch a defined role in the process. There should be little room for misinterpretation regarding the role assigned to the others.

The confrontation between Lee and Cho is hardly surprising. Cho was appointed chief justice by Lee’s predecessor, Yoon Suk Yeol, whose presidency was cut short by his impeachment after declaring martial law.

Since taking office, Lee, with the support of the ruling Democratic Party of Korea, has pursued measures that critics have viewed as weakening judicial independence.

Tensions between the presidential office and the Supreme Court surfaced on Aug. 18, when the Supreme Court submitted two nominees to the presidential office without a prior face-to-face consultation between Lee and Cho. Such a meeting has been customary in the selection process, making its absence unusual.

The president's office took the matter seriously, arguing that the Supreme Court's recommendation contained a procedural flaw because the longstanding practice of consultation had not been followed. The Supreme Court, however, maintained that the chief justice had tried to arrange a meeting but that the presidential office declined to set one.

Days later, Lee asked the National Assembly to proceed with a confirmation hearing and vote on one of the nominees, Kim Sung-soo, a judge of the Seoul High Court, while rejecting the other nominee, Song Bong-ki, a judge of the Daegu District Court. Lee also asked the Supreme Court to recommend a replacement for Song from among two other candidates recommended by the Supreme Court Justice Recommendation Committee.

It was unprecedented for a president to reject a nominee recommended by the chief justice, and tensions between the presidential office and the Supreme Court continued to mount.

On Tuesday, weeks after Lee rejected the nominee, the Supreme Court issued a statement saying it would not recommend a new candidate. It called the presidential request “unconvincing” and said it lacked “constitutional grounds.”

“There are no specific reasons or constitutional grounds that can justify the presidential request to recommend a new nominee. Accordingly, we won't follow it,” the statement said.

The presidential office expressed “deep regret” over the Supreme Court's decision. In a statement, it argued that the court's position effectively but unconstitutionally placed the chief justice's nomination above the president's appointment authority. Lee's office said the court appeared to be treating the chief justice's selection as binding and was attempting to undermine the president's constitutional authority to appoint Supreme Court justices.

The Supreme Court's announcement came as Lee embarked on visits to the United States for the U.N. General Assembly and Mexico for a summit with its president.

Of the two vacant seats on the 14-member Supreme Court, one was recently filled when the National Assembly gave its consent to Kim's appointment and Lee appointed him before departing for the United States. One seat remains vacant and has been open since Justice Rho Tae-ak retired in March.

Each Supreme Court justice reportedly handles between 3,500 and 4,600 cases a year. A prolonged vacancy could therefore add to the workload of other justices and potentially affect people's right to a speedy trial.

The dispute between the presidential office and the Supreme Court must be resolved smoothly and swiftly. Both the president and the chief justice should refrain from emotional reactions and meet at the earliest possible opportunity to consult on the remaining vacancy.

The Constitution has already established the respective roles of the president, the chief justice and the National Assembly. The solution should begin there. When in doubt, both sides should follow what is written in the Constitution — not what best serves their own institutional interests.