Lee Yong-hoon and Cho Hee-dae: Same Attempt, Different Outcomes

In South Korea, the president's term of office is five years, while the Chief Justice of the Supreme Court serves a six-year term. The structure makes it difficult for a Chief Justice and a president to conclude their terms together. Consequently, whenever there is a transfer of power, tension forms between a new president and a Chief Justice appointed by the previous administration. The nomination of Supreme Court justices has proven particularly contentious, rarely proceeding smoothly.

Among past precedents, the conflict between former President Lee Myung-bak and former Chief Justice Lee Yong-hoon offers significant implications for the current dispute involving the demand for a renomination of a Supreme Court justice. This is because Chief Justice Cho Hee-dae attempted the exact compromise method previously employed by former Chief Justice Lee Yong-hoon. The outcomes, however, were entirely different. Lee Yong-hoon succeeded, whereas Cho Hee-dae failed. The process of nominating Supreme Court justices during former Chief Justice Lee Yong-hoon's tenure was far from smooth. He reportedly once said, "The job of Chief Justice would be manageable if it were not for the Supreme Court nominations." In an oral memoir published by the Supreme Court Library, former Chief Justice Lee acknowledged that there were "many differences of opinion" with the president. However, he stated, "We resolved those differences by coordinating and adjusting with each other." (From Republic of Korea Court Oral History Series 9: The Path of a Judge, Lee Yong-hoon). A complete breakdown, such as a formal demand for renomination, was avoided. How, then, did former Chief Justice Lee resolve such conflicts?

The "Lee Yong-hoon-style solution" is described in detail in the book Supreme Court, I Object! written by author Kwon Seok-cheon (a former editorial writer for the JoongAng Ilbo), based on interviews with the former Chief Justice.

The event occurred in August 2009 during the selection of a successor to former Supreme Court Justice Kim Yong-dam. The presidential office strongly favored Gil Gi-bong, then Chief Judge of the Daejeon District Court. However, Judge Gil was not recommended by the Advisory Committee on Supreme Court Justice Nominations (the predecessor of the current Supreme Court Justice Candidate Recommendation Committee). This reflected the intention of former Chief Justice Lee. He reportedly believed, "Accepting the presidential office's requested nominee at face value could infringe upon the Chief Justice's nomination power and ultimately affect judicial independence." Fearing that including the figure demanded by the presidential office in the candidate pool might lead to a moment where he would "have to confront the president directly" during the nomination process, he excluded him at the committee recommendation stage. (The above is cited from Supreme Court, I Object!)

The presidential office expressed displeasure, and the nomination schedule was repeatedly delayed. Reactions even emerged stating, "There is no reason to meet the Chief Justice over the nomination issue. Moving forward, the Supreme Court should submit nominee recommendations in writing." The situation came right to the brink of former Justice Kim Yong-dam retiring without a successor in place. In the end, former Chief Justice Lee presented a solution.

The Advisory Committee on Supreme Court Justice Nominations recommended four candidates: Kwon O-gon, Jeong Gap-ju, Lee Jin-sung, and Min Il-young. Former Chief Justice Lee offered a compromise allowing the president to choose one of the three candidates who were serving court chiefs. Whomever among the three the president selected, the Chief Justice promised to formally nominate. Author Kwon Seok-cheon assessed that former Chief Justice Lee "effectively handed the presidential office a wild card."

Former President Lee Myung-bak selected Min Il-young, then Chief Judge of the Cheongju District Court, from among the three candidates presented by the Chief Justice. Former Chief Justice Lee met the president at the presidential office and formally nominated Judge Min to the Supreme Court, thereby averting a crisis. At the time, former Chief Justice Lee reportedly thought, "Unless I put my position on the line regarding Supreme Court nominations, it will be difficult to fulfill the role of Chief Justice." This incident took place 17 years ago. Yet it closely mirrors recent events. Indeed, the method Chief Justice Cho Hee-dae attempted with President Lee Jae-myung was precisely this "Lee Yong-hoon-style solution." The outcome, however, differed from that of former Chief Justice Lee.

In February 2026, ahead of former Justice Noh Tae-ak's retirement, the Supreme Court Justice Candidate Recommendation Committee recommended four candidates to Chief Justice Cho Hee-dae: Yoon Seong-sik, Park Soon-young, Son Bong-gi, and Kim Min-gi. The presidential office strongly preferred the nomination of Kim Min-gi, Senior Judge at the Suwon High Court. However, Chief Justice Cho maintained that he could not nominate Senior Judge Kim. There was a reason for this stance.

The official rationale was that Senior Judge Kim Min-gi's spouse is Constitutional Court Justice Oh Young-joon, who had been appointed by President Lee Jae-myung. The Chief Justice viewed it as inappropriate for a married couple to simultaneously occupy top judicial seats in both the Supreme Court and the Constitutional Court. Yet, within and outside the judiciary, analyses suggested the real motive echoed that of former Chief Justice Lee 17 years ago: the belief that simply accepting a candidate dictated by the presidential office would undermine the Chief Justice's nomination authority and harm judicial independence.

Chief Justice Cho presented the "Lee Yong-hoon-style solution." According to a report by The Dong-A Ilbo on March 3, 2026, during the initial phase of the nomination controversy, the presidential side proposed Kim Min-gi as its first choice and Park Soon-young as its second, while the Chief Justice proposed Yoon Seong-sik as his first choice and Son Bong-gi as his second. Subsequently, the Chief Justice indicated a willingness to nominate Senior Judge Park Soon-young if that was the presidential office's preference, but an agreement could not be reached as the presidential office continued to insist on Senior Judge Kim Min-gi. Chief Justice Cho had effectively indicated that he would accept whichever candidate the president chose among the remaining three, excluding Senior Judge Kim Min-gi, whom the presidential office had specifically demanded. It was an approach similar to that of former Chief Justice Lee 17 years earlier.

After the "Lee Yong-hoon-style solution" failed, matters became further complicated as unexpected circumstances arose regarding two of the three candidates proposed by Chief Justice Cho. Senior Judge Yoon Seong-sik was designated presiding judge of the special court division handling insurrection cases, including those involving former President Yoon Suk Yeol. Nominating a presiding judge in charge of high-profile insurrection cases to the Supreme Court was practically unfeasible. Meanwhile, Senior Judge Park Soon-young's concurrent role as a member of the National Election Commission (NEC) became an issue. While judges serving as election commissioners had rarely caused controversy in the past, issues surrounding the NEC surfaced immediately following the local elections in June 2026, leading to the launch of a special counsel investigation. Chief Justice Cho reportedly informed the presidential office that nominating Senior Judge Park had also become untenable due to these circumstances.

At that point, only two options remained for Chief Justice Cho: nominate Senior Judge Kim Min-gi as requested by the president, or nominate Senior Judge Son Bong-gi without reaching an agreement with the president. (As a third alternative, the Minister of National Court Administration appears to have considered reconvening the candidate recommendation committee to form a new pool. To this end, the Minister reportedly contacted the four recommended candidates to ask if they would voluntarily withdraw, but dropped the idea following pushback from some candidates, which ended up creating an even bigger controversy.) Between the two remaining options, Chief Justice Cho chose to nominate Senior Judge Son Bong-gi without presidential consensus. What followed is well known to all. The situations faced by former Chief Justice Lee Yong-hoon and Chief Justice Cho Hee-dae were similar, and the solutions both proposed were identical. However, former Chief Justice Lee succeeded in preventing a crisis, whereas Chief Justice Cho failed. The fact that relations between President Lee Jae-myung and Chief Justice Cho Hee-dae are far more adversarial than those between former President Lee Myung-bak and former Chief Justice Lee Yong-hoon likely played a role. It may also stem from President Lee Jae-myung and the ruling party holding significantly tighter control over state affairs than previous administrations. Whatever the reason, what remains clear is that the current president did not accept the compromise that a predecessor accepted 17 years ago.
President Lee Jae-myung's refusal to appoint the nominated justice rather than opting for compromise does not constitute a violation of the Constitution. Based on constitutional authority alone, the prevailing legal interpretation holds that a president can refuse to appoint a figure nominated by the Chief Justice. (However, if the presidential office distinguishes between "refusing an appointment" and "returning a nomination," claiming it merely returned the nomination due to procedural flaws rather than refusing the appointment, constitutional questions arise, as the "lack of prior agreement" asserted by the presidential office can hardly be deemed a procedural defect.) Nonetheless, the president's power is limited to refusing an appointment. The president has no authority to restrict the scope of the Chief Justice's nomination power. Whether to "renominate" one of the existing three recommended candidates as requested by the presidential office or to convene a new candidate recommendation committee to receive a fresh candidate pool is entirely up to the Chief Justice to decide. It cannot be coerced, as this too is a constitutional prerogative. Regarding the nomination of Supreme Court justices, there is a clear need to consider ways to harmonize the two values of "democratic legitimacy" and "judicial independence." Granting the nomination power to the judiciary is a unique characteristic of South Korea's institutional design, reflecting historical experiences where presidential power frequently infringed upon judicial independence. However, conferring nomination authority upon an unelected judiciary can pose issues in terms of democratic legitimacy. Even if nomination power is granted to the judiciary to preserve judicial independence, arguments claiming that vesting this power in the individual Chief Justice is problematic also hold validity. (Prior to 1972, nomination authority was granted to the judiciary, but it was exercised by bodies such as the "judges' council" rather than the Chief Justice individually.) Having a body composed of members from the legislative, executive, and judicial branches exercise nomination authority could serve as an alternative to balance democratic legitimacy and judicial independence, an option worth examining should constitutional reform discussions take place in the future.

However, those who need to be filtered out right now are individuals who emphasize "judicial independence" when the opposing side holds the presidency and their own side holds the Chief Justice position, yet champion "democratic legitimacy" when their side holds the presidency and the opposing side leads the judiciary. Only a few years ago, when former Chief Justice Kim Myeong-su and former President Yoon Suk Yeol clashed over Supreme Court nominations, some people criticized the president while emphasizing judicial independence. Many of those same individuals are now criticizing the Chief Justice while invoking democratic legitimacy. Rational debate will only be possible once such double standards are set aside. Meaningful discussion can only occur among those who take responsibility for their own words.
※ Please note: This article was translated by AI and may contain errors.