단상斷想

Chief Justice Cho Hee-dae is rewriting the Constitution of the Republic of Korea in his office right now. What he said is simple: “I will not recommend Supreme Court justices again. There is no basis for re-recommendation in the Constitution.” What that one sentence means is even simpler: If I recommend someone, neither the National Assembly nor the President should refuse. If they refuse, leave the position vacant and let the people's trials be delayed. Vacancies become my weapon. This is the ultimatum the Supreme Court presented to the Blue House in the fall of 2026.

First, let's ask. Who appointed the person in that position? The Chief Justice is appointed by the President with the consent of the National Assembly. Yoon Suk-yeol nominated and appointed Cho Hee-dae. The person Yoon Suk-yeol put in place is now insisting, in the face of the appointment power of the President elected after Yoon Suk-yeol, that 're-recommendation is not in the Constitution.' The position he holds is a product of the President's appointment power, but he intends to make that appointment power a scarecrow when it comes to the Supreme Court justice positions that others will fill. The moment the separation of powers is mentioned, separation transforms not into checks and balances, but into a sanctuary for one side. Article 104, Paragraph 2 of the Constitution is short.

“Supreme Court justices are appointed by the President upon the recommendation of the Chief Justice and with the consent of the National Assembly.”

Here, three powers are placed side by side: recommendation, consent, and appointment. None of them are written to swallow the others. If the National Assembly refuses consent, that candidate is rejected. If the President does not send the appointment consent bill to the National Assembly or does not appoint, that candidate cannot become a Supreme Court justice. If the demand for re-recommendation, the first in 69 years since Syngman Rhee in 1957, is an 'unprecedented outrage,' then a unilateral written recommendation without consultation is also an unprecedented notification that breaks constitutional custom. To say that one side is unprecedented and the other is sacrosanct is a sophistry that should not come from the mouth of a legal professional.

The core of Cho Hee-dae's logic is this: Since the word 're-nomination' is not explicitly stated in the Constitution, even if the President rejects a nomination, I will not propose another person. If that is the case, I ask: The Constitution also does not explicitly state 'prohibition of appointment refusal.' Nor does it state that 'the President must unconditionally appoint the person nominated by the Chief Justice.' The moment we base arguments on what is not explicitly stated, then what is not stated applies to both sides. But why is what is not stated only disadvantageous to the President, and what is read as if it were stated only advantageous to the Chief Justice? The interpretation that 'my nomination is final' elevates the right to nominate to a royal prerogative above the right to appoint. As the Blue House stated, it is an interpretation that neutralizes the appointment power of an elected authority. The Chief Justice's attempt to protect the right to nominate and the attempt to hold a vacancy hostage to force the President to yield are not the same act.

The vacancy since the retirement of former Supreme Court Justice Roh Tae-ak has already exceeded half a year. In a system where thousands of cases accumulate per Supreme Court Justice annually, a single vacancy is not just a statistic; it is the time of the individuals involved. Delayed rulings, delayed remands, delayed finalizations. The cost of that time is paid not by the Chief Justice's office, but by the citizens awaiting lower court decisions. The independence that shouts 'judicial independence' while neglecting a vacancy is independence from the people. This is where independence turns into impunity.

The bigger problem is not just one Supreme Court justice position. We need to re-read Article 104, Paragraph 3 of the Constitution.

「Judges who are not Supreme Court Justices shall be appointed by the Chief Justice of the Supreme Court with the consent of the Council of Supreme Court Justices.」

Who nominates the 14 Supreme Court Justices? The Chief Justice. With the consent of the Council of Supreme Court Justices, composed of those Justices, who appoints all other judges? Again, the Chief Justice. The threshold for consent is a majority. If the hand that nominates the Supreme Court Justices who form that majority is the same hand that fills the positions of Chief Judges of High Courts, Chief Judges of District Courts, and Chief Judges of High Court Divisions, then it is not an appointment system with checks and balances, but a ladder of self-replication. There's no need to give daily instructions even to rookie judges. It's enough to control the presiding judges, the chief judges, and the breathing room of transfers and assignments. Bureaucracy is completed not by command, but by personnel. Even after the scene of express fees exchanged at registry office counters disappeared, the saying that courts are more bureaucratic than administrative agencies did not disappear. The reason is simple: the personnel at the apex are almost a closed circuit.

In February 2026, the National Assembly passed an amendment to the Court Organization Act, increasing the number of Supreme Court Justices from 14 to 26. Starting in 2028, four new justices will be appointed each year, reaching 26 by 2030. Including both new appointments and replacements for retirees, dozens of positions will be filled within the current president's term. It is at this very threshold that Cho Hee-dae firmly states, 'Nomination is my inherent authority; there will be no re-nomination.' As the number grows, the weight of the nomination power also increases. The longer a vacancy is prolonged, the more time there is to push for candidates aligned with one's own vision. This is a double-dealing approach: lamenting backlogs to the public, while using backlogs as a shield in front of the Blue House.

Power without checks inevitably shows in financial management. The Board of Audit and Inspection discovered that the Supreme Court Justices and the Chief of the Court Administration Office regularly received monthly incentive payments in cash without legal basis. Since Cho Hee-dae took office, business entertainment expenses have accumulated in the hundreds of millions. High-end restaurants, inflated headcounts, lack of evidence — the direction pointed to by parliamentary audits and opposition party revelations is consistent. This attitude seeks to use the independence of trials as an excuse for the independence of the budget. The moment the separation of powers becomes a shield that bypasses audits, disciplinary actions, and information disclosure, separation becomes a privilege. This is why there is ridicule about discussing taxpayers' money while having wine. The issue is not one or two receipts, but the question of who oversees this organization.

Cho Hee-dae's counterargument has already been made. The right to nominate is the last bastion of judicial independence. If the president only appoints people he likes, the Supreme Court will become a branch of the executive branch. I recall that in past administrations, the presidential office tried to exclude specific candidates before nomination. That counterargument cannot be ignored. However, independence is not the right to a vacancy, and nomination is not a substitute for appointment. If independence is correct, then they should consult within the multiple candidates proposed by the recommendation committee and proceed to the stage of parliamentary approval. Whether to put Son Bong-gi's candidacy to a vote in the National Assembly and have it rejected, or to nominate another recommended candidate again, the path is not blocked. The path he chose is neither of these. Either accept my nomination entirely, or leave the position vacant. The moment this is called independence, independence becomes another name for refusing dialogue.

Impeachment is not an emotional execution. It is the only democratic check on unelected constitutional bodies, as provided for in Article 65 of the Constitution. Two-thirds of the National Assembly's total members. That threshold is high. It should be high. However, a high threshold does not mean 'someone who should not be touched.' If these three things overlap—a serious violation of the law related to duties, intentional abuse of powers allocated by the Constitution, and a long-term vacancy that jeopardizes the people's right to a trial—then impeachment is not an exaggeration but the original purpose of the system. Even if a special court cannot be immediately formed, the argument that a dedicated court can be established by law is a separate matter. What the people should first ask now is not the name of the court, but whether the highest authority forming the court can block the Constitution with its own interpretation.

Discussing only the expansion of Supreme Court justices while keeping Cho Hee-dae in this position is like expanding the room for someone who has locked the door. The structure where a Chief Justice appointed by Yoon Suk-yeol blocks the appointment power of the Lee Jae-myung administration cannot be covered up with the phrase 'political neutrality.' The moment neutrality places the legacy of one administration above the constitutional authority of the next, it is no longer neutrality. The day of reckoning does not come with slogans. It comes when the National Assembly impeaches, the Constitutional Court deliberates, and the people watch the process. Until then, vacancies will continue, the appointments of lower court judges will circulate in a closed loop, and the phrase 'there is no such provision in the Constitution' will become a governing technique.

That circuit must be broken immediately. Impeach Cho Hee-dae.