Wednesday, January 26, 2005

Judicial Terms on the Constitutional Court

A feature of the Korean Constitutional Court that is striking from the American perspective is the renewable six-year term. In the United States, federal judges serve for life (unless they voluntarily retire early or are removed by impeachment). The Korean model is different from the U.S. model but is not unique. In fact, it’s the U.S. model of life tenure that is unique, not the other way around.

Over the years, an interesting informal norm has developed within the Constitutional Court. Even though the justices’ terms are renewable, only one justice (out of twenty-eight who have served or are still serving) has sought to reappointed, and he (Justice Kim Moon-hee) served for twelve years (between 1988 and 2000). My understanding, based on conversations with lawyers in Korea, is that it is considered uncouth to occupy one’s seat for more than one term. There are a lot of qualified people who can serve as justices of the Constitutional Court, and the prevailing sentiment is that once a justice serves his or her full term, he or she should give up the seat so that 1) the next generation of justices can be appointed and 2) the next appointing body (whether it be President, Chief Justice of the Supreme Court, or the National Assembly) is given opportunities to make new appointments. (Of course, the mandatory retirement age makes the issue of reappointment moot for many, too.)

This phenomenon is an intriguing mixture of egalitarianism (Constitutional Court seats should be distributed as widely as possible), youthism (the old should move out of the way for the young), hierarchy (once the old steps aside, the next-in-line steps in), and (perhaps just a faint) whiff of cronyism (appointments move in tandem with shifts in power). (The Korean culture is frequently described as “Confucian” and “hierarchical”; less observed is the way in which the hierarchical elements of the culture coexist and interact with the country’s deep egalitarian instincts.)

One consequence of the limited judicial terms is that there are few signs of individual judicial philosophies or sustained agendas to reshape the law in the Korean Constitutional Court. Americans tend to speak of constitutional law in personal terms (“Scalia-this,” “Rehquist-that”). Rehnquist has been on the Court for over thirty years and Scalia for almost twenty years. With life tenure, American Supreme Court justices can bring to the Court long-term projects to put their personal stamps on the law. Korean Constitutional Court justices do not have that kind of luxury. A more complicated question is whether this set of arrangements is sufficient to guarantee "judicial independence."


Anonymous Sean Hayes said...

Interesting Blog. I work for the Constitutional Court of Korea and also teach U.S. Con. Law at Kookmin University. I will post on here when I have an interesting issue.

The most common reason for Justices not to consider reappointment is that they reach or are very near the mandatory retirment age.

12:53 AM  

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