President Lee Jae-myung requested Chief Justice of the Supreme Court Cho Hee-dae on August 28 to recommend a new Supreme Court justice nominee. Three key issues can be identified in connection with this.
① Can the president's refusal of appointment be considered a constitutional violation?
② Can the absence of "prior agreement" between the president and the chief justice be considered a procedural flaw in the recommendation process?
③ Can the president limit the scope of the recommendation so that the chief justice must re-recommend a Supreme Court justice from among the candidates previously recommended by the Supreme Court Justice Candidate Recommendation Committee? Or can the National Assembly amend relevant laws and regulations for such a purpose?
Let us analyze the significance of this Supreme Court justice appointment refusal by examining these three issues one by one.
■ Can the President Refuse to Appoint a Supreme Court Justice?
Both the theory that the president cannot refuse an appointment and the theory that the president can refuse exist. Personally, however, I believe the theory that the president can refuse an appointment (the substantive appointment power theory) is more logical.
Let us look at the nature of the president's power to appoint Supreme Court justices. The procedures related to the appointment of Supreme Court justices appear in Article 104, Paragraph 2 of the Constitution.
Article 104 (2) of the Constitution: The Supreme Court Justices shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court with the consent of the National Assembly.
The Constitution separately stipulates the Chief Justice's "power of recommendation," the National Assembly's "power of consent," and the President's "power of appointment." The question is whether the president's "power of appointment" includes the authority to refuse an appointment.
Regarding this, there are the formal appointment power theory and the substantive appointment power theory. Proponents of the formal appointment power theory view that the president's power to appoint Supreme Court justices does not include the authority to refuse an appointment. This means the president is obligated to appoint the person recommended by the Chief Justice and consented to by the National Assembly as a Supreme Court justice. Conversely, proponents of the substantive appointment power theory view that the power to appoint Supreme Court justices includes the authority to refuse the appointment. This means the president can substantively decide whether to make the appointment. If the interpretation that the power to appoint Supreme Court justices is a formal power is correct, President Lee Jae-myung's refusal to appoint constitutes a "constitutional violation," as the opposition party claims. If the interpretation of substantive appointment power is correct, the act of refusing to appoint a Supreme Court justice cannot be defined as a constitutional violation, regardless of the validity of the reasons presented by the presidential office.
Those who support the interpretation of formal appointment power argue that the president's power to appoint Supreme Court justices holds the same status as the power to appoint Constitutional Court justices. There is an established Constitutional Court ruling that the president's power to appoint Constitutional Court justices is a formal authority. In February 2025, when the Constitutional Court ruled on a case in which then-Acting President Choi Sang-mok withheld the appointment of then-Constitutional Court justice nominee Ma Eun-hyeok, it judged that the president's power to appoint a Constitutional Court justice nominee elected by the National Assembly is "formal." In doing so, it stated that the president has an obligation to appoint the person elected by the National Assembly as a Constitutional Court justice. Proponents of the formal appointment power theory similarly interpret that the president has an obligation to appoint the person recommended by the Chief Justice as a Supreme Court justice.
However, proponents of the substantive appointment power theory argue that the power to appoint Constitutional Court justices and the power to appoint Supreme Court justices are different. They pay attention to the difference in terminology used in the Constitution. Regarding Constitutional Court justices, it is stipulated that the president appoints those "elected" by the National Assembly or "nominated" by the Chief Justice of the Supreme Court (Article 111, Paragraph 3 of the Constitution). Regarding Supreme Court justices, however, it is stipulated that the president appoints those "recommended" by the Chief Justice with the consent of the National Assembly. Their stance is that because the Chief Justice's "nomination" of Constitutional Court justices and "recommendation" of Supreme Court justices carry different meanings, an obligation to appoint does not arise regarding the recommendation of Supreme Court justices.
They argue that the Chief Justice's authority to "recommend" Supreme Court justices should rather be compared to the Prime Minister's authority to "recommend" members of the State Council (Article 87, Paragraph 1 of the Constitution). It is generally interpreted that the president can refuse to appoint upon the Prime Minister's recommendation of State Council members. This means the president possesses substantive appointment power. Their stance is that the same interpretation should apply to the Chief Justice's "recommendation" of Supreme Court justices.
Another ground presented by the substantive appointment power theory is the history of constitutional amendments. The Constitutions of the Second and Third Republics explicitly included clauses to the effect that if the recommending authority recommends a Supreme Court justice, the president must appoint them. (See the quoted constitutional provisions below.) During the Syngman Rhee administration, a controversy arose when the president refused to appoint a recommended Chief Justice, and following this, the relevant clause was introduced in the Second Republic Constitution with the intention of making clear that the president's power to appoint Supreme Court justices was a formal authority.
However, in the Yushin Constitution amended in 1972, the provision defining the president's appointment power over Supreme Court justices as a formal power was deleted. The provision stating that the president must appoint the recommended person as a Supreme Court justice disappeared. (See the quoted provisions below.) Afterwards, through the Fifth Republic Constitution to the current Constitution, although the constitutional provisions regarding the appointment process for Supreme Court justices were modified slightly, the provision defining the president's appointment power as a formal authority was never revived.
Proponents of the substantive appointment power theory view that the intent of the constitution-amending power is reflected in this history of constitutional revisions. Deleting the provision that defined the president's appointment power over Supreme Court justices as a formal power can be seen as meaning that going forward, the president's power to appoint Supreme Court justices would not be interpreted as a formal power. Therefore, their stance is that the corresponding provision leading up to the current Constitution should be interpreted as defining the president's power to appoint Supreme Court justices as a substantive authority.
▶ Article 78 of the Second Republic Constitution: The Chief Justice of the Supreme Court and the Supreme Court Justices shall be elected by an electoral college composed of persons qualified as judges, and confirmed by the President. (Amended June 15, 1960)
▶ Article 99 (2) of the Third Republic Constitution: Judges who are Supreme Court judges shall be recommended by the Chief Justice of the Supreme Court with the consent of the Judges Recommendation Council and appointed by the President.
In this case, if there is a recommendation, the President shall appoint them.(Amended December 26, 1962)
▶ Article 103 of the Yushin Constitution
① The judge who is the Chief Justice of the Supreme Court shall be appointed by the President with the consent of the National Assembly.
② Judges who are not the Chief Justice of the Supreme Court shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court. (Amended December 27, 1972)
▶ Article 104 (2) of the Current Constitution: The Supreme Court Justices shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court with the consent of the National Assembly. (Amended October 29, 1987)
Personally, I think it is more reasonable to interpret the president's appointment power as a substantive appointment power that includes the authority to refuse an appointment. In light of the fact that the president's appointment power over Constitutional Court justices concerns "election" or "nomination" whereas the appointment power over Supreme Court justices concerns "recommendation," that it is customary to interpret that the president can refuse appointment upon the Prime Minister's "recommendation" of State Council members, and that past constitutional provisions that defined the president's appointment power as a formal power were intentionally deleted after the 1972 constitutional amendment, interpreting that the president has substantive appointment power to refuse the appointment of Supreme Court justices appears logical. In this case, the president's refusal to appoint a Supreme Court justice cannot be defined as a constitutional violation.
Furthermore, it is necessary to point out that the Supreme Court side has also expressed support for this interpretation. This is because Roh Kyung-pil, Minister of National Court Administration, made remarks to the effect that the president has the authority to refuse an appointment when he attended a meeting of the National Assembly's Legislation and Judiciary Committee on August 19. (Minister Roh Kyung-pil, a sitting Supreme Court justice, is also known as an expert in constitutional and administrative law.) In light of this, speculation by some that Chief Justice Cho Hee-dae would file a competence dispute adjudication against President Lee Jae-myung's refusal of appointment can be assessed as having low feasibility.
○ Lawmaker Park Gyun-taek: Then, in the end, it means the person with the power of recommendation is making the appointment, right?
● Roh Kyung-pil, Minister of National Court Administration: That is not the case.
○ Lawmaker Park Gyun-taek: Then why is the appointing authority needed?
● Roh Kyung-pil, Minister of National Court Administration: In any case, I think the appointing authority can refuse an appointment.
(Omitted)
○ Lawmaker Park Gyun-taek: No, I mean, what is the reason for giving the power of appointment to the president?
● Roh Kyung-pil, Minister of National Court Administration: It is to decide whether to make the appointment or not.
○ Lawmaker Park Gyun-taek: Is that so?
● Roh Kyung-pil, Minister of National Court Administration: Yes.
- From the minutes of the National Assembly Legislation and Judiciary Committee on August 19, 2026 -
■ Can a Recommendation Without "Prior Agreement" Be Considered to Have a Procedural Flaw?
However, apart from the president having the authority to refuse the appointment of a Supreme Court justice, the reason for the refusal stated by Senior Presidential Spokesperson Kang Yu-jung when announcing the "request for re-recommendation" is not valid. This is because the lack of "procedural completeness" resulting from the failure of the president and the chief justice to reach a "prior agreement" was presented as the main reason for refusing the appointment. However, since "prior agreement" cannot be a procedural requirement for the Chief Justice's exercise of the recommendation power, the absence of prior agreement cannot be regarded as a procedural flaw.
The Constitution defines the Chief Justice's power of recommendation and the President's power of appointment as independent powers. Just as the president's appointment power is not a formal power subordinate to the Chief Justice's recommendation power, the Chief Justice's recommendation power is likewise not subordinate to the president's appointment power. (Rather, constitutions prior to 1972 defined the president's appointment power as subordinate to the recommendation power.) Therefore, just as the president can refuse an appointment without being bound by the Chief Justice's recommendation, the Chief Justice can also recommend Supreme Court justice nominees without being subordinate to the president's appointment power.
Of course, "consultation" between the president and the chief justice is necessary as a constitutional convention. However, such necessity does not define a "prior agreement" between the president and the chief justice as a procedural requirement. Nowhere in the Constitution or the law is there any clause stipulating that prior agreement with the president is a procedural requirement for exercising the recommendation power. Furthermore, if the Chief Justice could only exercise the recommendation power when reaching a "prior agreement" with the president who holds the appointment power, the president would likewise only be able to request consent for appointment from the National Assembly when reaching a "prior agreement" with the National Assembly, which holds the power of consent. Naturally, the president can request appointment consent from the National Assembly without prior agreement. Therefore, the presidential office's claim that there was a lack of "procedural completeness" because there was no "prior agreement" is not valid.
(The presidential office's citing of a lack of "procedural completeness" due to the absence of a "prior agreement" as a reason for refusing appointment appears to be conscious of the Constitutional Court ruling regarding the withholding of Constitutional Court justice appointments. In February 2025, the Constitutional Court judged that then-Acting President Choi Sang-mok's withholding of the appointment of a Constitutional Court justice violated the Constitution, defining the president's appointment power over Constitutional Court justices as "formal." Nonetheless, the Constitutional Court stated, "If there is a flaw violating laws such as the Constitution and the National Assembly Act based on the principle of parliamentary democracy in the election process (of Constitutional Court justice nominees by the National Assembly, the president) may withhold the appointment and demand a re-election." It ruled that if there is a "flaw violating the law" in the pre-appointment process, the president can withhold the appointment and demand that the National Assembly undergo the process again. In light of this ruling, even if one takes the position that the president's appointment power does not include the authority to refuse an appointment (formal appointment power theory), the logic could stand that if there is a "flaw violating the law" in the Chief Justice's Supreme Court justice recommendation process, the president could withhold the appointment and demand a re-recommendation. However, even if such logic holds, as pointed out above, it is difficult to view the lack of "prior agreement" as a lack of "procedural completeness" or a "flaw violating the law." This is because prior agreement is not a procedural requirement for exercising the recommendation power.)
■ Can the President or the National Assembly Limit the Scope of the Chief Justice's Recommendation Power?
The presidential office also requested that the Chief Justice proceed with the re-recommendation process while "respecting the recommendation contents of the Supreme Court Justice Candidate Recommendation Committee." This is being interpreted as a demand that the Chief Justice, rather than forming a new candidate recommendation committee, recommend one of the three candidates—excluding Senior Judge Son Bong-gi, whose appointment was already rejected—from among the four candidates recommended by the existing recommendation committee.
The Democratic Party's move to amend the legislation related to the Supreme Court Justice Candidate Recommendation Committee is in line with this. On August 24, Democratic Party Leader Kim Min-seok instructed work on amending the Court Organization Act, stating, "We must review amending the legal loophole that requires the formation of a recommendation committee every time a Supreme Court justice is recommended to prevent trickery." This means amending the law so that even if the president refuses an appointment, the Chief Justice cannot form a new recommendation committee and must instead recommend another person from among the candidates recommended by the existing recommendation committee.
The problem is that if the presidential office's demand or the Democratic Party's legislative move is combined with the president's exercise of the power to refuse an appointment, it could lead to an infringement of the Chief Justice's recommendation power. If the Chief Justice cannot receive candidate recommendations again after the president's refusal, the Chief Justice would have no choice but to recommend one of the three candidates, excluding the one whose appointment was rejected, from among those recommended by the existing committee. However, if the president consecutively rejects two of the remaining three candidates as well, the Chief Justice would ultimately be forced into a situation where they must recommend the final person who suits the president's liking. As a result, the Chief Justice's recommendation power would effectively be reduced to the "authority to recommend the candidate most favored by the president from among those recommended by the Supreme Court Justice Candidate Recommendation Committee." This can be evaluated as virtually neutralizing the Chief Justice's power to recommend Supreme Court justices.
Therefore, the presidential office's demand for a re-recommendation within the existing recommendation results is highly likely to be interpreted as infringing upon the Chief Justice's recommendation power stipulated by the Constitution. The legislative move to fundamentally block the re-formation of the recommendation committee is the same. In particular, if the statute is amended to the effect that the Chief Justice's exercise of recommendation power is legally "bound" by the candidate recommendation results of the Supreme Court Justice Candidate Recommendation Committee, it could lead to a competence dispute adjudication before the Constitutional Court.
(In fact, the Chief Justice is not legally bound by the recommendation results of the Supreme Court Justice Candidate Recommendation Committee. Article 41-2 of the Court Organization Act, the current statute governing the Supreme Court Justice Candidate Recommendation Committee, merely stipulates that the Chief Justice "respects" the recommendation results of the recommendation committee. Compared to the way other statutes using the term "respect" in personnel affairs are interpreted, it cannot be interpreted that the Chief Justice is "bound" by the recommendation committee's results. Therefore, the Chief Justice can recommend a person who is not among the candidates recommended by the committee. However, from the standpoint of the presidential office, which interprets the lack of "prior agreement" with the president as a procedural flaw, it is highly likely that they would define the Chief Justice recommending a person not recommended by the committee as an even more serious procedural flaw.)
■ Seeking a Solution Within the Boundaries of the Constitution
The three issues surrounding the president's refusal to appoint a Supreme Court justice can be summarized as follows:
① Can the president's refusal of appointment be considered a constitutional violation?
- Although there is a conflict of academic theories, interpreting that the refusal of appointment itself is permitted under the Constitution appears more logical.
② Can the absence of "prior agreement" between the president and the chief justice be considered a procedural flaw in the recommendation process?
- Because "prior agreement" is not a procedural requirement for exercising the recommendation power, the absence of prior agreement cannot be regarded as a procedural flaw.
③ Can the president limit the scope of recommendation so that the chief justice must re-recommend a Supreme Court justice from among the candidates previously recommended by the Supreme Court Justice Candidate Recommendation Committee? Or can the National Assembly amend relevant laws and regulations for such a purpose?
- Limiting the scope of the Chief Justice's recommendation power by the president or the National Assembly is highly likely to be interpreted as infringing upon the Chief Justice's recommendation power stipulated by the Constitution.
In conclusion, the president's power of appointment and the Chief Justice's power of recommendation can be seen as independent powers. It is reasonable to interpret that the president can refuse an appointment without being bound by the Chief Justice's recommendation power, and the Chief Justice can exercise the recommendation power without being bound by the president's appointment power.
Of course, if the president and the chief justice continue to fail to reach an agreement, recommendations and appointment refusals could be repeated. However, just like the relationship between the president and the National Assembly, this is a matter to be resolved through consultation within the framework of the Constitution by constitutional institutions exercising independent powers. Even if the National Assembly repeatedly votes down the president's request for consent to appoint a prime minister, resulting in a prolonged vacancy of the prime minister post, the president cannot mobilize state emergency powers or other means to force the National Assembly to accept the prime minister appointment consent request.
The Constitution does not provide explicit resolution guidelines for every type of deadlock. Even so, attempting to solve a problem in a manner that neutralizes the other party's exercise of authority is a constitutional violation. Former President Yoon Suk Yeol's act of rebellion in attempting to neutralize the National Assembly is a representative example. The Constitution envisions problem-solving through consultation and compromise. I hope the president and the chief justice will find a reasonable solution within the boundaries of the Constitution.
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