After Scalia, an opportunity to replace partisan predictability with true deliberation

The death of Supreme Court Justice Antonin Scalia presents President Barack Obama with a rare opportunity to shape the high court’s direction for years, if not decades, to come. Our hope is that he fights the temptation to shift the court’s balance markedly leftward and, instead, selects a nominee who plays his or her politics straight down the middle.

Scalia’s death should neither be cause for rejoicing among liberals nor undue angst among conservatives. Some Republicans, including Senate Majority Leader Mitch McConnell, want the president to await the results of the November presidential elections and cede his nominating authority to his successor. That notion is not just unrealistic, it’s irresponsible.

The nation cannot afford to have Scalia’s seat go unfilled until the next president is inaugurated a year from now, plus how many additional months that would transpire for the nominee to be vetted and confirmed. Besides, it’s the sitting president’s prerogative to make the nomination, and this newspaper would defend that right regardless of whether a Democrat or Republican sat in the White House.

Scalia was unquestionably a gifted constitutional scholar. He was acerbic and outspoken. His biting dissents too often devolved into personal attacks on his colleagues. His demeanor was grating but tolerable. Our problem was with his predictable politics.

Scalia could always be relied upon to disregard even the most persuasive and logical arguments if he thought the outcome would strengthen the liberal side. His conservative bent suggested that he was not weighing the merits of the arguments before the court, but rather whether his vote would advance or detract from his personal conservative causes.

That should never be the judiciary’s role, whether it’s a municipal court judge assessing the fairness of a traffic ticket or a Supreme Court justice ruling on major issues such as abortion rights, immigration or the executive branch’s authority to restrict power-plant carbon dioxide emissions.

Scalia’s vote was always predictable. His conservative colleague, Justice Anthony Kennedy, has proven far less reliable. He could swing either way, as he did in last year’s landmark ruling on same-sex marriage rights.

This newspaper represents just one tiny voice among many in this debate. But we want Obama to consider the Kennedy model of jurisprudence. His style might seem too conservative for Democrats salivating at the opportunity to redirect the high court sharply to the left. Such a nominee would yield angry criticism from conservatives who want Scalia’s hard-line conservatism to survive.

That’s why the Kennedy model strikes the right balance. It’s worth noting he was nominated and confirmed in 1988 during President Ronald Reagan’s final year in office. McConnell backed him and raised no objections suggesting that the decision be left to Reagan’s successor.

That’s as clear an affirmation as Obama needs to forge ahead.

Reprinted from the St. Louis Post Dispatch

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