By Koo Lap

In about 40 days, it will be the United States general election. Supreme Court Justice Ruth Bader Ginsburg passed away right during this time, no sooner, no later. Whether or not to fill the vacancy immediately became a heated controversy, and added to the variables of the election. Donald Trump said that the voters' choices will have huge consequences, which is not a lie at all.

The Supreme Court of the United States consists of nine justices. In addition to Ginsburg, who was nominated by Clinton, there are three other justices appointed by the Democratic Party. The Republican Party appointed five, among which two were by Trump. Although Chief Justice John Roberts was appointed by the Republican president George Bush, he has deviated from his party members and established himself as the swing vote in major controversies, such as Obamacare and university affirmative action and admission quotas. The justices are appointed for life. At this juncture, if Trump can make another strike and appoint a justice still in his/her prime, the Republican Party will be looking at taking control of the Supreme Court in the next 30 to 40 years.

Devil’s in the details. The Democratic Party strongly opposes filling the vacancy on the even of the general election, and pointed out that four years ago, following the death of the Republican Justice Antonin Scalia eight months before the general election, when Obama wanted to fill the vacancy, he was stopped by the Republican Party in the Senate. As the curtain of the election falls, Trump immediately filled the vacancy as he moved into the White House.

It seems cold-hearted for Trump to be itching to nominate a successor when Ginsburg has not even been buried. However, when Obama’s appointment was stuck at the Senate four years ago, a Supreme Court justice righteously reprimanded the Republican Party, “There’s nothing in the Constitution that says the president stops being the president in his last year,” she said firmly, “That’s their job.” Who wanted to fill the vacated seat immediately and made such a proclamation? Ginsburg indeed! In her will four years later, the same Ginsburg wished: before there is an election result, do not fill the vacancy.

By the design of the constitution, seat vacancies must be filled by Trump’s nomination and to be approved by the Senate, and not something transferrable with Ginsburg’s subjective wishes. This election is fierce, and more reasons that the seat should not be left vacant. In 2000, Bush and Fore faced off. When there was a situation with the Florida ballots, the Supreme Court had to rule whether the ballots were valid. Bush entered the White House by barely scraping the win. This year’s election could easily be needing the decision by the Supreme Court as well.

As the pandemic rages on, many states are allowing voters to vote by mail. The postal process is easy to be messed with, falsified, and be fraudulent. If the polls turn out to be as close as it was in 2000, the Supreme Court will easily have to rule the authenticity of the postal ballot. As such, if Ginsburg’s vacancy is not filled, the country might fall into a four-to-four stalemate in a major dispute such as the authenticity of ballots, triggering a leaderless constitutional crisis. There is a very urgent need to fill the vacancy.

Sitting on top of the Hong Kong Court of Final Appeal, a blindfolded statue of Lady Justice holds a beam balance and a sword, symbolizing that justice must be based on evidence and impartiality. If so, why has the choice of justices become a partisan debate? There are reasons behind the justices' interference in politics. In Ginsburg’s case, back in July 2016 and before Trump was formally nominated by the Republican Party to run for president, she had tried to influence the election by telling the New York Times that if Trump became the president, “I can’t imagine what the country would be”. She joked that if Trump was elected, she would consider moving to New Zealand! Trump’s virtues are perhaps nothing to brag about, but for a justice to attack a presidential candidate to such an extent is perhaps unheard of as well. In trials and disputes involving Trump and the federal government, would Ginsburg remain fair and just?

Why are justices interfering in politics? Former justice of the Supreme Court of the United Kingdom, Lord Jonathan Sumption believes that the root cause is people’s greediness and convenience by taking shortcuts. What would have been cases that require people’s political compromises are taken to court and decided by the judge. Take Ginsburg’s advocacy for abortion rights as an example. This should have been a decision made by the 50 states based on local conditions, but was intervened in 1973 by the Supreme Court that was supposed to be responsible for federal affairs, to overthrow the anti-abortion law in Texas and took the local conflicts to the state level, causing societal tears. Since then, the appointment of judges has become a battleground for political parties. With this, how is the judiciary still fair and just?

It is inevitable that people opt for shortcuts, but why are justices submitting themselves to political interference? Power is what humans desire, and justices are no exception. It is easier said than done in resisting the temptation of power and upholding one’s ethics. This is why Scalia believed that justices should base their judgments on the basis of the constitution rather than their personal preferences. Scalia has passed, but his ideas are increasingly being recognized. If Trump can push forth with this, restricting the power of judges, and resolving conflicts between people politically could hopefully become the mainstream, thus ameliorating societal tears. If so, Ginsburg’s passing will mark the end of the era of Supreme Court justices' political interference. Amen.

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