Editorial: Kirk must endorse Constitutional process to replace Scalia

 
The Daily Herald Editorial Board
Posted2/20/2016 2:00 PM
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  • Senator Majority Leader Mitch McConnell, left, says the Senate will not consider a nomination this year to replace Supreme Court Justice Antonin Scalia, but Sen. Mark Kirk of Illinois has so far declined to take a position.

    Senator Majority Leader Mitch McConnell, left, says the Senate will not consider a nomination this year to replace Supreme Court Justice Antonin Scalia, but Sen. Mark Kirk of Illinois has so far declined to take a position. Daily Herald file photo

Within hours of the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell of Kentucky proclaimed that the Republican-controlled Senate would not consider any possible replacement President Barack Obama nominates in this, his final year in office.

McConnell's declaration was quickly echoed by several other prominent Republicans, including every candidate seeking the GOP nomination for president.

One of the few Republicans to have so far declined to join the urgent calls for assumptive rejection is Illinois' junior Sen. Mark Kirk, who issued a statement that "The political debate erupting about prospective nominees to fill the vacancy is unseemly. Let us take the time to honor his life before the inevitable debate."

Let it be known that we share some of the Republican concerns that the court could end up swinging sharply to the left, depending upon who is appointed to fill Scalia's chair. In recent years, the court has been fairly well balanced, and that's a healthy situation, one we hope would continue.

In addition, there is, we concede, temptation to accept the argument that the voters should have a say in such a crucial appointment, and that by delaying the appointment, that is what would happen via the presidential election.

But the Constitution doesn't say anything about mixing elections with Supreme Court appointments.

Quite clearly, our founders meant to remove the court as much as possible from the political process, to elevate the judiciary above politics.

The Constitution doesn't say Supreme Court justices should be elected. It says they should be appointed in what essentially is a collaborative decision between the president and the Senate.

That system has worked pretty well on the federal level over the years. The evidence has been in our inability, for the most part, to predict what side might win out on the major issues that have come before the court.

Could anyone have predicted, for example, the court's ruling on the Affordable Care Act?

We're not naive. We recognize politics is not absent in all these matters.

But as much as we can strive to limit the taint of politics on the court, we should.

The only hope of that is to follow the Constitution.

To give in to the reflex to block a nomination that hasn't even been made would be to give in to a debilitating cynicism that our court is and must be political in nature.

We refuse to accept that cynicism, as, frankly, the friendship between Scalia and Justice Ruth Bader Ginsburg symbolized a repudiation of it.

We call on Obama to nominate a jurist whose credentials are beyond dispute and whose approach is founded on Constitutional guidelines and we call on the Senate to hold hearings and genuinely consider the nomination.

And we call on Sen. Kirk to lift his voice in favor of that principle.

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