Ko Jung-ae
The author is the editor-in-chief at the JoongAng Sunday.
A question was posed to several generative AI systems: “In Western democracies, have there been cases where spouses simultaneously served as Supreme Court justices or constitutional court judges?” The overall conclusion was consistent: No confirmed cases could be found. There have been none in the United States or Britain, and the same appears to hold true for Germany.
The Supreme Court building in Seocho District, Seoul, as seen on Feb. 16. [YONHAP]
This reflects a broadly shared standard. A married couple, defined by court precedent as a “community of shared life and economic interests,” serving simultaneously on a small, top-level decision-making body raises concerns. It risks conflicts of interest and questions of bias. It also falls short of the principle that justice must not only be done but be seen to be done. Issues of diversity and fairness also arise. The appointment of a handful of top judges is a highly political process shaped by considerations of ideology, balance and representation. Concentrating such positions within a single household is difficult to justify.
This issue is now at the center of a prolonged deadlock over a Supreme Court appointment. Under the system, the president appoints justices with the consent of the National Assembly, following nomination by the chief justice. In practice, the president and the chief justice often coordinate closely. When their views align, appointments proceed smoothly. When they do not, disputes emerge.
A similar conflict occurred during the tenure of former Chief Justice Lee Yong-hoon, who rejected a candidate favored by the Lee Myung-bak administration, arguing that accepting the presidential office’s preference would undermine judicial independence, as noted in the book “The Supreme Court, I Object” (2019).
A comparable stalemate is now unfolding. The successor to Justice Roh Tae-ak, who stepped down on March 3, has yet to be nominated, although a short list of candidates was finalized on Jan. 21. The candidates include judges Kim Min-ki and Park Soon-young, as well as Sohn Bong-gi and Yoon Sung-sik. According to a legal source familiar with the process, the chief justice and the presidential office have been unable to agree.
“The chief justice had a preferred candidate, but the presidential office opposed it,” the source said. “Instead, it indicated that it could accept Judge Kim or Judge Park. The chief justice did not agree. The presidential office then suggested it might refuse the appointment. After that, the chief justice moved toward Judge Park, but the presidential office insisted on Judge Kim. This back-and-forth has continued for more than a month.”
The controversy has intensified because Judge Kim’s husband, Oh Young-joon, is a Constitutional Court justice. Both are associated with the same legal research group. President Lee Jae Myung has so far appointed two Constitutional Court justices, including the court president, one of whom is Oh. Judge Kim is reportedly his preferred candidate for the Supreme Court.
Even if both individuals are highly qualified, the situation raises concerns. With the Supreme Court and Constitutional Court effectively forming a layered judicial system, having spouses serve at both levels could create complications. If one reviews a decision made by the other, questions of impartiality arise. Recusal may address the issue but could place a burden on colleagues. If a case returns to the Supreme Court, the situation becomes even more complex.
A view of the Constitutional Court. The building, completed in 1993, features nine mugunghwa flower sculptures on its upper section, symbolizing the court’s nine justices. [JOONGANG ILBO]
A past example illustrates how such concerns were handled. During Lee Yong-hoon’s tenure, two highly regarded judges, Lee Sang-hoon and his brother Lee Kwang-bum, were both considered strong candidates for the Supreme Court. At the time, a senior court official reportedly suggested that one step down to avoid complications. Shortly after one brother resigned, the other was nominated.
Such informal practices do not appear to have guided the current situation. A legal expert explained that while certain judicial research groups are no longer as active, others have gained influence, including one that reportedly supported Judge Kim’s candidacy. The outcome has been a more contentious selection process.
A resolution will require compromise. Both the chief justice and the presidential office need to step back. The presidential office, in particular, may need to broaden its pool of candidates. Appointing two members of a married couple to the highest courts would be difficult to defend. In the past, similar disputes were resolved through a third option acceptable to both sides. A comparable approach may again be necessary.
This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
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