[EAI Working Paper] 2022 Conditions for Presidential Success Series: Part 8 The Failure of the Constitution, the Judiciary, and the President

1. The Failure of the Constitution, the Judiciary, and the President Caused by Code Appointments

On February 4, 2021, an impeachment of a judge was carried out in the National Assembly. This was the impeachment resolution against Judge Im Seong-geun, who was involved in the judicial misconduct of the 'Yang Seung-tae Court' during the Park Geun-hye administration. What, then, is the reason for the National Assembly's unprecedented action of 'judicial impeachment' in the history of the Constitution? Under what institutional conditions did the 'judicial misconduct' that led to the indictment of high-ranking judges, including the Chief Justice, occur? What political consequences have resulted from the president's 'code appointments' of the Chief Justice and Associate Justices? This chapter aims to provide its own answers to these questions.

The National Assembly's impeachment of a judge can be defined as a form of 'constitutional failure' resulting from the collapse of the constitutional logic of checks and balances. The fact that both the National Assembly and the courts are constitutional institutions that do not command public trust makes it difficult to distinguish whether the impeachment of a judge is a case of the Constitution being used properly or misused, reflecting the political situation. The reason the judiciary forms one axis of 'constitutional failure' is that the judiciary, in terms of both its independence and accountability, has fallen into a large-scale 'moral hazard.' 'Judicial failure' occurs when the judiciary has a low institutional capacity to make rulings independent of the influence of the president and the National Assembly, and also a low institutional capacity to effectively punish illegal acts committed by judges. There is not much the president can do to improve the level of judicial independence and accountability. The logic of checks and balances embedded in the Court Organization Act dictates that the president can prevent the abuse of judicial administrative power by the Chief Justice only by appointing the most suitable candidates as Chief Justice and Associate Justices, thereby forming a Supreme Court en banc with a high level of neutrality and diversity. If the president fails to adequately address the risk of 'adverse selection' in the appointment of the Chief Justice and Associate Justices and clings to 'code appointments,' the resulting 'agency loss' in the form of moral hazard within the judiciary will fall entirely on the appointer. This is why frequent 'code appointments' in the judiciary often lead to 'presidential failure.'

Therefore, this chapter does not raise objections to various institutional design proposals related to judicial reform, such as the establishment of standing bodies for judicial and trial independence, the abolition of the Court Administration Office and the establishment of a deliberative judicial administration body, and the reform of the judicial appointment system, including the abolition of the senior judge system for high courts.[1]However, it is pointed out that institutional reform plans requiring extensive legal revisions, including constitutional amendments, have a low probability of realization. It is necessary to recall that even in the 'Kim Myung-soo Court' that emerged after the judicial misconduct scandal, the Supreme Court's own reform proposals were passive regarding the decentralization of the Chief Justice's power, and the Special Committee for Judicial Reform of the 20th National Assembly concluded without revising the regressed Court Organization Act.

This chapter discusses judicial reform focusing on what the president can do without amending the Constitution or the Court Organization Act. The starting point is for the president to resist the temptation of 'code appointments' in relation to the appointment of the Chief Justice and Associate Justices. If the president abandons 'code appointments,' the neutrality and diversity of the Supreme Court en banc will increase, creating institutional conditions to curb the abuse of judicial administrative power by the Chief Justice, and providing an opportunity to improve the level of judicial independence and accountability. As a result, there may be a glimpse of hope for the judiciary to escape the trap of 'constitutional failure.'

2. Constitutional Failure Caused by Judicial Impeachment

On February 4, 2021, the National Assembly passed an impeachment motion against a judge with 179 votes in favor out of 288 present. Although the Constitutional Court, which commenced impeachment proceedings on June 10, 2021, dismissed this petition on October 28, it seems clear that the history of the Constitution will record the case '2021헌나1' as the first instance where the impeachment power granted to the National Assembly by Article 65 of the Constitution was exercised against a judge.[2]However, it remains uncertain whether the history of the Constitution will record this case as an instance of 'proper use of the Constitution,' where the checks and balances between the legislative and judicial branches operated appropriately based on the principle of separation of powers, or as an instance of 'misuse of the Constitution,' where partisan offensives between the ruling and opposition parties were excessively exercised, extending the logic of party competition. This is because, despite the legal judgment of the Constitutional Court, political disputes surrounding the constitutional historical definition of this case are unfolding across various sectors of Korean society.

Immediately after the National Assembly's resolution to impeach the judge, the ruling Democratic Party of Korea clearly stated its position in favor of the former, arguing that the National Assembly was 'fulfilling its duty as the legislative branch to check and correct the wrongdoings of the judiciary in accordance with the separation of powers (Democratic Party of Korea 2021).' In contrast, the opposition People Power Party took the latter stance, calling it 'an unilateral impeachment of judges by the ruling party utilizing its numerical majority (People Power Party 2021: 20).' The first-instance court that examined the criminal responsibility of the impeached judge ruled in February 2020 that 'the act of interfering with trials is an unconstitutional act that infringes upon judicial independence by exploiting the judge's position or personal relationships (Seoul Central District Court 2020: 64),' lending support to the former interpretation. Conversely, the appellate court ruled in August 2021 that 'it seems inappropriate to describe the defendant's act of interfering with trials as an 'unconstitutional act' before even examining whether it constitutes the elements of the crime of abuse of power (Lee Yong-kyung 2021),' thus supporting the latter interpretation. When asked in a public opinion poll, 'Do you support the impeachment of judges?', public sentiment leaned towards the former view immediately after the National Association of Judges' resolution to consider impeachment in December 2018 (support 52%, opposition 34% (Realmeter 2018)). However, immediately after the National Assembly's impeachment motion was filed in February 2021, public sentiment shifted towards the latter view (support 44%, opposition 45% (Realmeter 2021)). In this light, it appears that neither political parties, the courts, nor public opinion can easily escape the political conflict triggered by the impeachment of judges.

Regardless of the Constitutional Court's legal judgment, which may lean towards a 'proper use of the Constitution' in the future, it is necessary to grasp the underlying framework of 'constitutional failure' in this case. The impeachment power granted to the legislative branch by Article 65 of the Constitution originates from the logic of deterrence, intended to prevent the abuse of power by the executive and judicial branches. This is the same logic as military deterrence, which aims to ensure national security by preventing war by sending a signal in advance that aggression by another country will result in unbearable punitive retaliation. The success or failure of military deterrence depends on the credibility of the signals sent to other countries. If the punitive retaliation for military aggression is highly likely to occur, other countries are less likely to engage in aggression in the first place. Consequently, the probability of war decreases. The crucial point is that military deterrence achieves its purpose not through the actual execution of punitive retaliation, but through its 'hypothetical threat.' If punitive retaliation actually occurs, it means that war has already broken out. Therefore, the objective that military deterrence sought to achieve has failed (Schelling 2008).

Similarly, the purpose of the National Assembly's impeachment power lies not in the punitive sanctions imposed on judges through its actual exercise, but in deterring judges from unconstitutional or illegal acts through its hypothetical threat. In other words, this power is a form of deterrence. Like the logic of military deterrence, the success or failure of constitutional deterrence logic is determined by the credibility of the signals sent to judges. If there is a high probability that punitive sanctions will actually be imposed when unconstitutional or illegal acts occur, judges are more likely to refrain from such acts. Consequently, the possibility of the National Assembly exercising its impeachment power decreases. Constitutional deterrence achieves its purpose through the 'invisible' operation of power that induces judges to refrain from unconstitutional or illegal acts through the hypothetical threat of punitive sanctions embodied in the National Assembly's impeachment power (Engst 2021). If judicial impeachment actually occurs, it means that judges have already failed to refrain from unconstitutional or illegal acts. Therefore, the logic of constitutional deterrence has already collapsed (Helmke 2017). Based on the above discussion, the success or failure of constitutional deterrence can be typified as shown in <Table 1>. First, if the National Assembly actively implements the logic of constitutional deterrence and judges actively refrain from unconstitutional or illegal acts, a balance of 'constitutional success' is achieved. In this balance, impeachment does not occur. Second, if the National Assembly actively implements the logic of constitutional deterrence while judges passively refrain from unconstitutional or illegal acts, impeachment occurs, representing a 'proper use of the Constitution.' Third, if the National Assembly passively implements the logic of constitutional deterrence while judges actively refrain from unconstitutional or illegal acts, impeachment occurs, representing a 'misuse of the Constitution.' Fourth, if the National Assembly passively implements the logic of constitutional deterrence and judges passively refrain from unconstitutional or illegal acts, a trap of 'constitutional failure' is created. If impeachment occurs within this trap, it is impossible to distinguish whether it is a 'proper use of the Constitution' or a 'misuse of the Constitution.' If the National Assembly had actively implemented the logic of constitutional deterrence, public trust in the National Assembly would have been high. Likewise, if judges had actively refrained from unconstitutional or illegal acts, public trust in the courts would have been high. <Figure 1> empirically verifies, based on this assumption, which type the case of judicial impeachment in Korea belongs to, using 34 OECD member countries as a comparative target.[3]The dashed line on the horizontal axis represents the sample average of public trust in courts, and the dashed line on the vertical axis represents the sample average of public trust in parliament, respectively. The empirical findings are as follows.

<Table 1> Success and Failure of Constitutional Deterrence

<Figure 1> Public Trust in Courts and Parliaments in 34 OECD Member Countries

Source: OECD (2021)

First, as of 2020, public trust in Korean courts was 22%, ranking 32nd among 34 OECD member countries, with a difference of -34 percentage points from the sample average. Second, as of 2020, public trust in the Korean parliament was 21%, ranking 27th among 34 OECD member countries, with a difference of -15 percentage points from the sample average. Third, combining these two indicators, Korea is trapped in 'constitutional failure' in relation to the logic of constitutional deterrence, occupying a similar position to Chile, Colombia, Mexico, and Poland.

From a comparative perspective, the fact that Korea is trapped in 'constitutional failure' provides a clue to understanding why Korean society is caught in a vortex of political division regarding its constitutional historical definition. This is because, trapped in 'constitutional failure,' no one in Korean society can easily distinguish whether the National Assembly's impeachment of judges is a 'proper use of the Constitution' based on the principle of checks and balances or a 'misuse of the Constitution' based on the logic of partisan offensives. Citizens are skeptical as to whether the National Assembly has actively pursued the logic of checks and balances embedded in the Constitution, and they question whether judges have actively refrained from unconstitutional or illegal acts. Without reform efforts to regain public trust, it appears difficult for both constitutional institutions to escape the trap of 'constitutional failure.'

3. Judicial Failure Caused by Judicial Misconduct

The impeachment of judges in February 2021 may merely be a symbolic event in the long period of turmoil caused by the so-called 'judicial misconduct' scandal that began to surface in March 2017. The judicial misconduct scandal refers to allegations that during the six years of the 'Yang Seung-tae Court,' which opened in 2011, 'high-ranking judges used trials as bargaining chips with the Park Geun-hye administration to establish a Supreme Court of Appeals' and 'interfered with trials,' and allegations that 'judges critical of judicial administration were subjected to disadvantages in personnel appointments while the wrongdoings of judges who committed irregularities were covered up (Ko Han-sol 2019).' In essence, the 'Yang Seung-tae Court' caused significant agency loss in the form of moral hazard in terms of both judicial independence and accountability. As a result, 14 former and current judges, including former Chief Justice Yang Seung-tae, former Associate Justice Park Byung-dae, former Associate Justice Ko Young-han, and former Deputy Secretary General of the Court Administration Office Lim Jong-heon, stood trial.[4]However, as of the current point, only two judges involved in the judicial misconduct scandal, former Standing Member of the Sentencing Commission Lee Gyu-jin and former Director of Planning and Coordination of the Court Administration Office Lee Min-geol, have been convicted (Lee Hye-ri 2021).

The Supreme Court's internal investigation into the 'Yang Seung-tae Court,' accused of undermining judicial independence through 'trial trading' and judicial accountability through 'trial interference,' was conducted three times: the first fact-finding committee in March 2017, the second additional fact-finding committee in November, and the third special fact-finding committee in February 2018. However, these efforts were insufficient to dispel public suspicion, let alone internal divisions within the judiciary. At the meeting of all chief judges nationwide on June 7, 2018, participants acknowledged the seriousness of the abuse of judicial administrative power and their responsibility, but expressed concern that measures such as criminal investigation referrals were inappropriate and that allegations of trial trading were groundless. In contrast, the National Association of Judges, at its meeting on June 11 of the same month, expressed concern about the erosion of the constitutional values of fair trials and judicial independence, and declared the necessity of fact-finding and accountability, including criminal proceedings. Ultimately, on June 18, 2018, the Seoul Central District Prosecutors' Office launched a full-scale investigation, shifting the handling of the judicial misconduct scandal to the criminal justice process (Kwon Seok-cheon 2019).

The key allegations against the 'Yang Seung-tae Court' revealed by the prosecution's investigation included improper consultations and conspiracy to interfere with trials with the Blue House and the Ministry of Foreign Affairs regarding forced mobilization compensation cases, the Japanese military comfort women damages case, the executive order to nullify the Korean Teachers and Education Workers Union's status as an extra-curricular organization, conspiracy to interfere with trials related to the Won Sei-hoon National Intelligence Service Director case, legal advice and provision of convenience to the Blue House, conspiracy to interfere with trials related to National Assembly members such as Rep. Hong Il-pyo, collection of information on internal cases, deliberations, and trends within the Constitutional Court, reporting and collection of search warrant investigation records, judicial surveillance and classification of judges such as those who caused controversy, and punitive measures against judges critical of judicial administration. Among these, the phrase 'it is necessary to carefully review the direction and timing of case handling for matters where the judiciary holds the initiative' in the internal document of the Court Administration Office related to the Won Sei-hoon NIS Director case, which caused considerable shock both inside and outside the judiciary, suggests that the 'Yang Seung-tae Court' perceived the trial as a bargaining chip to negotiate with the Blue House for the installation of a Supreme Court of Appeals, its long-cherished goal. The trial, which began in 2013, continued for five years through the first instance, second instance, Supreme Court remand, retrial after remand, and finally the Supreme Court. Notably, the trial after remand was stalled for 19 months, indicating significant circumstances of trial interference by the 'Yang Seung-tae Court' for the purpose of trial trading (Ko Han-sol 2020).

In summary, the judicial misconduct scandal that occurred in the 'Yang Seung-tae Court' fully reflects the judiciary's engagement in trial trading with the executive and legislative branches and interference in trials handled by lower court judges to advance the Chief Justice's agenda of establishing a Supreme Court of Appeals. The 'Yang Seung-tae Court' appears to have been unable to easily escape the vicious cycle where the judiciary, having damaged its independence through trial trading, also lost its accountability function through trial interference.

Confirming that the occurrence of this judicial misconduct scandal stemmed from the decline in the independence and accountability of the 'Yang Seung-tae Court' is deeply related to understanding why the judiciary, as discovered earlier, is trapped in the 'constitutional failure' and has lost public trust. Generally, judicial independence refers to 'the ability of courts to make rulings without being influenced by the policy preferences of the executive and legislative branches,' and judicial accountability refers to 'the ability of courts to punish judges when they are responsible for illegal acts' (Kosar 2016). Judicial independence and accountability are important not in themselves, but because they serve as tools to establish the 'rule of law,' or 'a state in which the enforcement of laws occurs with a high degree of transparency, autonomy, predictability, fairness, and equality, and the government shows a high degree of compliance with this enforcement of laws' (Tamanaha 2004).

<Table 2> typifies the judicial conditions for establishing the norms of the 'rule of law' in terms of both judicial independence and accountability. First, if both the level of judicial independence and accountability are high, it corresponds to a balance of 'judicial success' (①), as court rulings are not influenced by the executive and legislative branches, and effective punishment of judges' illegal acts is possible. This creates optimal judicial conditions for establishing the norms of the 'rule of law.' Second, if the level of judicial independence is low and the level of accountability is high, it corresponds to 'subjugation of the judiciary' (②), as hierarchical courts make rulings that allow for effective punishment of judges, but these rulings are subservient to the influence of the executive and legislative branches. The establishment of the norms of the 'rule of law' depends on the degree of compliance by the executive and legislative branches. Third, if the level of judicial independence is high and the level of accountability is low, it corresponds to 'fragmentation of the judiciary' (③), as court rulings, insulated from the influence of the executive and legislative branches, are left to the discretion of judges, making hierarchical control difficult. The establishment of the norms of the 'rule of law' depends on the degree of compliance by individual judges. Fourth, if the level of judicial independence is low and the level of accountability is also low, it corresponds to a trap of 'judicial failure' (④), as courts that are subservient to the influence of the executive and legislative branches make rulings, and hierarchical control over judges is difficult. This creates the worst judicial conditions for establishing the norms of the 'rule of law.'

<Table 2> Success and Failure of Judicial Balance

<Figure 2> empirically verifies, using 38 OECD member countries as a comparative target, which category the combination of judicial independence and accountability in the Korean judiciary falls into.[5]The dashed line on the horizontal axis represents the sample average of the judicial independence index, and the dashed line on the vertical axis represents the sample average of judicial accountability, respectively. The empirical findings are as follows.

First, from 2010 to 2020, the average level of judicial independence in Korea was 2.65 on a 4-point scale, ranking 34th among 38 OECD member countries, with a difference of -0.59 points from the sample average. Second, from 2010 to 2020, the average level of judicial accountability in Korea was 2.67 on a 4-point scale, ranking 30th among 38 OECD member countries, with a difference of -0.28 points from the sample average. Third, combining these two indicators, Korea is trapped in the 'judicial failure' trap in relation to the conditions for establishing the norms of the 'rule of law,' occupying a similar position to Turkey, Italy, and Greece.

From a comparative perspective, the fact that Korea is trapped in the 'judicial failure' trap provides a clue to understanding how the 'Yang Seung-tae Court' generated agency loss in the form of moral hazard in terms of both independence and accountability. Trapped in the 'judicial failure' trap, the 'Yang Seung-tae Court' pursued private interests such as 'the establishment of a Supreme Court of Appeals' rather than the public good of establishing the norms of the 'rule of law,' by attempting trial trading and improper appointments, and consequently fell into a vicious cycle that further lowered the levels of judicial independence and accountability. To escape the 'judicial failure' trap in which the 'Yang Seung-tae Court' was caught, it is necessary to deeply consider reforms that enhance judicial independence and accountability.

<Figure 2> Judicial Independence and Accountability in 38 OECD Member Countries

Source: Varieties of Democracy Projecthttps://www.v-dem.net/en/data/data/v-dem-dataset-v111/(Accessed: 2021.09.05.)

4. Presidential Failure Caused by Code Appointments

If the judicial misconduct scandal in the 'Yang Seung-tae Court' is akin to agency loss in the form of moral hazard, then the 'code appointments' that occurred in the 'Kim Myung-soo Court,' which opened in 2017, are closer to agency loss in the form of adverse selection. While moral hazard is an agency loss that occurs after the president appoints the Chief Justice and Associate Justices, where the agent neglects actions that establish the norms of the 'rule of law,' which is the principal's interest, adverse selection is an agency loss that ultimately harms the principal's interests because the president fails to select the optimal agent before appointing the Chief Justice and Associate Justices. Since the president has few means to effectively control the agents once they are appointed as Chief Justice and Associate Justices, it is difficult for the principal to directly hold them accountable for moral hazard within the judiciary. Article 106 of the Constitution, which states that 'a judge shall not be removed except by impeachment or by a sentence of imprisonment or heavier punishment,' is an institutional mechanism to ensure the independence of the agent, the judge. However, it also serves as an institutional barrier that makes it difficult for the principal, the president, to control the agent's moral hazard.

However, it is important to note that the president can prevent adverse selection in the appointment of the Chief Justice and Associate Justices by selecting optimal agents. In the absence of direct means to control judicial moral hazard, the way to minimize it is to reduce the risk of adverse selection in the appointment of the Chief Justice and Associate Justices as much as possible. Article 104 of the Constitution, which stipulates that 'the Chief Justice shall be appointed by the President with the consent of the National Assembly,' 'Associate Justices shall be appointed by the President upon the recommendation of the Chief Justice with the consent of the National Assembly,' and 'judges other than the Chief Justice and Associate Justices shall be appointed by the Chief Justice with the consent of the Supreme Court en banc,' assigns the president the role of reducing the risk of adverse selection related to agents. The Constitution embeds a circuit where if the president fails to select optimal agents as Chief Justice and Associate Justices, the judicial appointments lead to the agent's moral hazard, and the consequences fall entirely on the president's failure (Choi Seon 2015).

The Constitution grants the National Assembly the power of consent to prevent the president from exercising the appointment power too arbitrarily. It is believed that the more the president recognizes the National Assembly's consent power as an 'invisible' power, the more the president will exercise self-restraint in selecting candidates for Chief Justice and Associate Justices. The minimum condition for the president's restraint and the National Assembly's deterrence in the appointment of the Chief Justice and Associate Justices to form a constitutional balance is that the president and the National Assembly must have different policy preferences. The political conditions of a divided government are more likely to lead the president to select more suitable candidates for the appointment of the Chief Justice and Associate Justices than those of a unified government (Choi Jun-young, Cho Jin-man 2013).

Applying the Constitution's logic of checks and balances to the Court Organization Act, we can understand that the Chief Justice plays the role of the president, and the Supreme Court en banc plays the role of the National Assembly within the judiciary. First, Article 9 of the Court Organization Act grants the Chief Justice the authority to 'oversee and supervise judicial administrative affairs' and to 'submit written opinions to the National Assembly' when 'legislation or amendment is necessary' regarding 'court organization, personnel, operation, and trial procedures.' The Court Organization Act assigns the Supreme Court en banc the duty to check the Chief Justice's extensive exercise of power. Article 16 of the Court Organization Act stipulates that 'the Supreme Court en banc shall make decisions with the attendance of at least two-thirds of all Associate Justices and the approval of a majority of those present,' and Article 17 specifies its decision-making matters, including 'consent to the appointment and reappointment of judges' and 'matters concerning the enactment and amendment of Supreme Court rules.' If the Chief Justice refrains from abusing judicial administrative power, it is the result of the 'invisible' power of the Supreme Court en banc effectively exercising its deterrence function. Analogous to the relationship between the president and the National Assembly, the Chief Justice's restraint is possible when the composition of the Supreme Court en banc is at a high level of political neutrality and social diversity (Landemore 2013).

<Table 3> categorizes the criteria that the president should consider when appointing the Chief Justice and Associate Justices by cross-referencing the neutrality and diversity of agents. First, if the Supreme Court en banc possesses a high level of diversity and a high level of neutrality, it can be considered an optimal appointment that can enhance both judicial independence and accountability, corresponding to a balance of 'presidential success' (①). Second, if the Supreme Court en banc possesses a low level of diversity and a high level of neutrality, it can be considered an appointment that enhances judicial independence but may decrease accountability, corresponding to a choice of 'judicial independence' (②). Third, if the Supreme Court en banc possesses a high level of diversity and a low level of neutrality, it can be considered an appointment that enhances judicial accountability but may decrease independence, corresponding to a choice of 'judicial accountability' (③). Fourth, if the Supreme Court en banc possesses a low level of diversity and a low level of neutrality, it can be considered the worst appointment that may decrease both judicial independence and accountability, corresponding to a trap of 'presidential failure' (④).

<Table 3> Composition of the Supreme Court en banc

<Figure 3> shows the ruling tendencies of the 46 Associate Justices appointed by presidents from 2005 to 2020.[6]A score of 2 represents the most conservative tendency, and -2 represents the most progressive tendency. Each symbol represents the president who appointed the Associate Justice, as indicated in the figure's notes. Using this data, <Figure 4> was created. Personnel neutrality was measured by the average ruling tendency of Associate Justices appointed by each president, and personnel diversity was measured by the standard deviation of the ruling tendencies of Associate Justices appointed by each president. Personnel neutrality was interpreted as higher the closer the average value is to 0, and personnel diversity was interpreted as higher the larger the standard deviation. The empirical findings are as follows.

First, President Kim Dae-jung's judicial appointments showed a neutrality of 0.087 and diversity of 0.270. This corresponds to the president's choice of 'judicial independence,' which promotes judicial independence at the expense of accountability. Second, President Roh Moo-hyun's judicial appointments showed a neutrality of -0.154 and diversity of 1.061. This corresponds to a balance of 'presidential success,' which promotes both judicial independence and accountability. Third, President Lee Myung-bak's judicial appointments showed a neutrality of 0.117 and diversity of 0.441. This corresponds to a choice of 'judicial independence,' which promotes judicial independence at the expense of accountability. Fourth, President Park Geun-hye's judicial appointments showed a neutrality of 0.229 and diversity of 0.337. This corresponds to a trap of 'presidential failure,' sacrificing both judicial independence and accountability. The fact that this led to the judicial misconduct of the 'Yang Seung-tae Court,' as examined in the previous section, is regrettable. Fifth, President Moon Jae-in's judicial appointments, corresponding to the 'Kim Myung-soo Court,' although not in the trap of 'presidential failure,' recorded the lowest level of neutrality, suggesting that the criticism of 'code appointments' is not without basis.

<Figure 3> Ruling Tendencies of Associate Justices

● Kim Dae-jung, ■ Roh Moo-hyun, ◯ Lee Myung-bak, □ Park Geun-hye, X Moon Jae-in Source: JoongAng Ilbo, Seoul National University PolLab (2018); Han Gyu-seop (2020)

<Figure 4> Presidential Appointments of Chief Justice and Associate Justices

Neutrality is the absolute value, and the numbers are inverted. ◯ indicates a negative number.

Source: JoongAng Ilbo, Seoul National University PolLab (2018); Han Gyu-seop (2020)

From a comparative perspective, President Roh Moo-hyun was the only president among Korean presidents to achieve a balance of 'presidential success.' Indeed, the 'Lee Yong-hoon Court' during President Roh Moo-hyun's tenure was evaluated as having fostered both neutrality and diversity in appointments (Kwon Seok-cheon 2017). Other presidents had to sacrifice either neutrality or diversity, or both, in their judicial appointments. President Kim Dae-jung and President Lee Myung-bak appear to have made judicial appointments that prioritized neutrality at the expense of diversity. President Park Geun-hye's judicial appointments, characterized by low neutrality and low diversity, led her into the trap of 'presidential failure,' and the resulting judicial misconduct of the 'Yang Seung-tae Court,' as examined in the previous section, is a painful lesson. While the 'Kim Myung-soo Court' during President Moon Jae-in's administration is not in the trap of 'presidential failure,' its extremely low level of neutrality suggests that the criticism of 'code appointments' is not unfounded.[7]To prevent the recurrence of the risk of reverse selection in 'code appointments' by the 'Kim Myung-soo Court,' it appears that the President needs a vision for judicial reform that simultaneously fulfills the neutrality and diversity of Supreme Court Justices.

5. Judicial Reform Begins with Fair Appointments of Supreme Court Justices

This chapter defines judicial impeachment as a 'failure of the Constitution,' judicial manipulation as a 'failure of the judiciary,' and code appointments as a 'failure of the President,' and elucidates their institutional causal relationships. Tracing the causal chain backward leads to the most critical judicial reform task that the President must address. The operation of 'invisible' power to curb the abuse of judicial administrative power by the Chief Justice begins with institutionally guaranteeing a council of Supreme Court Justices that possesses both neutrality and diversity.

If the President can escape the temptation of 'code appointments' and select optimal candidates for Chief Justice and Supreme Court Justices while considering the National Assembly's consent, the first hurdle of judicial reform can be cleared. If the Chief Justice refrains from abusing judicial administrative power and the council of Supreme Court Justices, characterized by neutrality and diversity, implements effective deterrence logic, the institutional effect of enhancing the judiciary's independence and accountability—the second hurdle of reform—is likely to materialize. Consequently, if public trust in the courts increases, creating an institutional opportunity for judges to escape the 'failure of the Constitution' trap, the third hurdle of judicial reform will be reached. Ultimately, the issue hinges on how well the President can exercise restraint in appointing Chief Justice and Supreme Court Justices to select the optimal candidates. ■

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[1]For the most recent discussions on judicial reform, see the Lawyers for a Democratic Society Judicial Center (2021).

[2]Chief Justice Yoo Nam-seok announced the commencement of the impeachment trial hearing with the following statement: “This is the first case in the history of our constitution where a judge has been subject to impeachment proceedings. The Constitutional Court, deeply recognizing the solemn weight of this case within our constitutional order, will conduct a fair trial to the best of its ability (Lee Hye-ri 2021).”

[3]Of the 38 OECD member states, Canada, Costa Rica, Latvia, and Luxembourg were excluded due to the unavailability of data on citizen trust in parliament. The data for citizen trust in the judiciary is from 2000, and the data for citizen trust in parliament is from 2018. However, for Belgium, Ireland, and Israel, the data for citizen trust in parliament is from 2016. For detailed explanations regarding the measurement, refer to OECD (2021).

[4]The unfolding of the judicial misconduct incident is described in detail by Kwon Seok-cheon (2019), and the trial process of the judicial misconduct incident is reported in detail by Ko Han-sol (2019-2021) and Lee Hye-ri (2019-2021).

[5]From the V-Dem Dataset version 11.1, generated by the Varieties of Democracy institute in 2020, the average score for 'high court independence' from 2010 to 2020 was used for judicial independence, and the average score for 'judicial accountability' from 2010 to 2020 was used for accountability. For detailed explanations regarding the measurement, refer to Coppedge et al. (2021).

[6]For the judicial tendencies of Supreme Court justices, data from JoongAng Ilbo and Seoul National University Pol-Lab (2018) was used up to 2018, and this was supplemented with data from Han Gyu-seop (2020) after 2018. For detailed explanations regarding the measurement, refer to JoongAng Ilbo and Seoul National University Pol-Lab (2018).

[7]The data on the judicial tendencies of Supreme Court justices did not include Justices Lee Heung-gu and Chun Dae-yeop, appointed by President Moon Jae-in after September 2020. Considering that the former has a distinctly progressive tendency and the latter has a moderately progressive tendency, President Moon Jae-in's appointments to the Supreme Court risk falling into the 'presidential failure' trap of reduced neutrality and diversity (Kim Jong-hoon 2021).

■ Author: Kim Jeong_Associate Professor at the University of North Korean Studies. Ph.D. in Political Science from Yale University. Currently serves as a visiting professor at Yonsei University's Graduate School of International Studies, Chair of the Unification and Security Research Division Committee of the Korean Political Science Association, Regional Coordinator for the Asian Network for Democratic Research, and policy advisor to the Ministry of National Defense and the Defense Intelligence Agency. Previously held positions as a visiting researcher at the University of Tokyo's Graduate School of Arts and Sciences, Senior Researcher at the East Asia Institute, and Senior Researcher at the Institute for Far Eastern Studies, Kyungnam University. Research interests include comparative political institutions, comparative political economy, inter-Korean relations, and East Asian international relations. Has published articles such as “South Korean Democratization: A Comparative Empirical Appraisal” (2018), “The Legal Production Capacity of a Democratic Constitutional State: The Case of South Korea's Sub-Government” (2020), “A Working Parliament, A Talking Parliament, A Confrontational Parliament: Macro-Level Consequences and Micro-Level Foundations of Parliamentary Distrust” (2020), and “Conditions for the Success of COVID-19 Quarantine Policies: A Comparative Study of the Korean Case” (2021).

■ Editor: Jeon Ju-hyun_EAI Researcher

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