Vacancy crisis deepens as Supreme Court, Cheong Wa Dae clash over justice appointment

Each Supreme Court justice handled more than 4,500 final-appeal cases on the merits in 2024, as a prolonged vacancy continues to pile pressure on the court. With the standoff between the Supreme Court and Cheong Wa Dae escalating into an all-out confrontation, analysts say the process of selecting a replacement justice is unlikely to resume for now.

According to the "2025 Judicial Yearbook" published last year by the Supreme Court's Court Administration Office, the court handled a total of 54,951 merits cases in 2024. Excluding the chief justice, who participates only in en banc rulings, and the court administrator, who does not hear cases, the remaining 12 justices each handled an average of 4,579 cases annually — more than 12 cases per day. The yearbook is published each year and covers caseload statistics for the Supreme Court and lower courts.

The vacancy left by former Justice Noh Tae-ak, who retired in March, has now stretched beyond 200 days. Legal circles have repeatedly raised concerns that the workload burden on the remaining justices has grown since Noh completed his term without a successor in place.

The vacancy is directly affecting the composition of the court's smaller panels. The Supreme Court handles most final-appeal cases through three panels of four justices each. As of Saturday, the First and Second Panels each had four justices assigned, while the Third Panel had only three — Justices Oh Seok-jun, Eom Sang-pil and Lee Suk-yeon. Under the Court Organization Act, a panel of three or more justices may hear cases, but the remaining justices inevitably bear a heavier caseload to compensate for the empty seat.

The impact of the vacancy extends beyond the smaller panels. The en banc court — which includes all justices except the chief justice and the court administrator — also has major cases pending before it. These include the case against first lady Kim Keon Hee on charges related to alleged stock price manipulation at Deutsch Motors, as well as insurrection charges against former Prime Minister Han Duck-soo and former Minister of Interior and Safety Lee Sang-min. In en banc proceedings, justices sometimes refrain from putting matters to a vote when a ruling would not be unanimous or overwhelmingly one-sided, given that reaching a conclusion with a vacant seat raises questions of propriety.

The more pressing concern is that it has become nearly impossible to predict when the vacancy will be filled. Chief Justice Jo officially rejected Cheong Wa Dae's demand that he submit a new nomination, and the presidential office has refused to back down.

Jo nominated Sohn Bong-ki, a senior judge at the Daegu District Court, on Aug. 18 as a replacement for Noh. Cheong Wa Dae responded on Aug. 28, asking Jo to withdraw the nomination and instead put forward a different candidate from the existing pool. After 25 days of deliberation, Jo announced Wednesday that he would not comply with the request.

In his statement, Jo said that presidential acts under public law must be carried out through countersigned documents, and that the Aug. 28 official communication requesting a new nomination contained no specific grounds or constitutional basis for the request. "I cannot find any concrete constitutional basis or reason to justify the request for a new nomination," he said. "I therefore declare that I cannot comply with the request."

Cheong Wa Dae issued two statements in response, criticizing Jo. In the first, the presidential office expressed "deep regret" over Jo's announcement that he would not submit a new nomination despite the president's rejection of his original one. "The chief justice's position amounts to placing the chief justice's nomination authority above the president's appointment authority, which reflects a view that is contrary to the Constitution of the Republic of Korea," it said.

In the second statement, Cheong Wa Dae sharpened its criticism, saying Jo had opened his remarks by citing the constitutional requirement that presidential acts under public law be carried out through countersigned documents. "This distorts the facts, as if the president's request for a new nomination were somehow defective for failing to comply with the constitutional requirements of written form and countersignature," the statement said.

The presidential office said the Aug. 28 official communication requesting a new nomination had been issued as an electronic document bearing the prime minister's countersignature, and that past appointments of the chief justice and justices had been made with only the prime minister's countersignature. "If the intent is that the nomination rejection and the request for a new nomination are invalid because a relevant cabinet minister did not countersign, then this amounts to denying the validity of the appointments of the chief justice and justices who have been appointed to date with only the prime minister's countersignature," it said.

Cheong Wa Dae also said the constitutional basis for rejecting the nomination had been clearly stated in the official communication, and that the specific reasons had been explained in detail to the public through a senior spokesperson's briefing. "It is difficult to gauge the intent behind the chief justice alone saying he does not know the reasons for the rejection because they were not in the official communication, when the public is already well aware of them," the statement said.

Jo issued a follow-up statement through the Supreme Court on Wednesday, the day after his initial announcement, to provide additional clarification. He opened by asking for understanding that the timing of his statement had been delayed due to a family bereavement and preparations for an international event.

Jo explained that his reference in Wednesday's statement to the requirement that presidential acts under public law be carried out through countersigned documents was a general principle under Article 82 of the Constitution — that such acts must take the form of a document and be interpreted solely on the basis of that document — and was not meant to suggest that the Aug. 28 official communication had any formal defect.

Jo also said he found it difficult to accept the grounds cited in media reports — that there had been procedural irregularities in the nomination process — when examined against the provisions of the Constitution and relevant laws. He said he was sorry for the inconvenience caused to the public by the prolonged vacancy and pledged to do his best to bring the process to a swift conclusion.

With both sides invoking the Constitution and showing no sign of convergence, there are growing concerns that no clear path exists to restart the appointment process. Legal circles had previously floated two options: Jo could submit a new nomination from the existing pool of candidates recommended by the Supreme Court Justice Candidate Recommendation Committee, excluding Sohn, or the committee could be reconstituted and the process restarted from scratch. Neither option now appears likely to move forward quickly, analysts say.

If the Supreme Court and Cheong Wa Dae fail to narrow their differences over the nomination and appointment process, the vacancy could persist until Jo's own retirement — an unprecedented situation. Jo's term runs through June next year.