The death of Sen. Ted Kennedy (D-MA) immediately turned the nation’s collective thought to the idea of the “Kennedy legacy.” The concept of such a legacy is, at the very least, a misnomer. First of all, there are still Kennedys involved in public life. More to the point, though, when the “Kennedy legacy” is discussed, it is, more than anything, a masked call for national introspection to raise awareness of the challenges that we face, and an examination of the sort of leadership and solutions we will need to meet them. When that conversation arises, we often do as one of the Kennedy titans would have. Sen. Kennedy’s death called us once more to look to that legacy for inspiration, but Massachusetts political leadership took the easy way out.

In 2004, the General Court amended the standing Senate vacancy law to remove the governor’s power to appoint a temporary successor, leaving instead a five-month gap between the vacancy and a special election to fill the seat. However, Ted Kennedy gave us advice earlier this year, foreseeing the untimely demise which came this past August. In a letter to Gov. Deval Patrick (D-MA) and prominent legislative leaders, Kennedy deplored the possibility of leaving Massachusetts half-represented in the Senate and recommended amending the 2004 statute to return appointment power to the governor. Opponents of the 2004 change alleged then that it was nothing more than a partisan move to ensure that then-Gov. Mitt Romney (R-MA) would not be able to make a Republican appointment should Sen. John Kerry (D-MA) have won the presidency, and opposed Kennedy’s plan, seeing it as a hypocritical Democratic power grab.

As to whether or not Kennedy’s solution was a suitable one, I make no judgment. What we can admire is the late senator’s unabashed willingness to change the system and unapologetically try to ensure “the continuity of representation for Massachusetts should a Senate vacancy occur.” It is true that Senator Kennedy expressed what he wanted – representation – but, as much as his friendships crossed partisan lines, so too did his willingness to engage in the practice of legislation.  We should have let Kennedy’s actions speak, and the General Court should have found a compromise. Instead, Beacon Hill Democrats forced through a bill in September 2009 which undid the legislature’s actions of 2004, allowing Gov. Patrick to appoint, with no strings attached, now-Sen. Paul Kirk, a longtime Kennedy friend and aide.

A myriad of plausible compromises which would have allowed Democrats to maintain some political and moral high ground existed. One such compromise includes allowing gubernatorial appointments now and in the future – with the consent of a supermajority of the legislature. Changing the process itself would allow this debate to be framed as something more than a partisan power grab. Another possibility would have been to allow Patrick to make an appointment – with the consent of leaders of both the Democratic and Republican parties. This would require a bipartisan, good faith effort to do nothing more than ensure the continuity of representation for the Commonwealth. A third solution that comes to mind was used with some success in Wyoming in 2007 to fill the seat of former Sen. Craig Thomas (R-WY), now occupied by Republican Sen. John Barrasso. It allows the party that held the seat prior to the vacancy to submit three names to the governor, of which one must be chosen for the temporary appointment. If the Republicans should someday gain a seat in Massachusetts, this policy would apply equally to them.

These are only a few of the possible solutions at the disposal of Massachusetts legislators. Most assuredly, more legally brilliant minds than my own inhabit the halls of the State House, but does the political will exist? Senator Kennedy’s ability to write and vote for bills that were the products of compromise was forged by decades of conservative – not even necessarily Republican – control of the Senate. Democratic Massachusetts legislators generally revel in the comparative luxury of their safe seats and even safer control of the House of Representatives and Senate. When a difficult political question like this one threatens their security in a real way, a compromise not only makes ethical sense, it makes political sense and reminds the voters that the Legislature can be entrusted to their party.

A healthy debate has already started for the special election set to take place this January. Republican and Democratic candidates are both appealing, and the race is still open for any and all comers to forge a path to victory. This is a race which could produce a successor worthy of Ted Kennedy’s seat. Though Kennedy’s seat has already been filled until January, the process for filling vacancies still needs change, and it’s not too late to bring it. Let us, as a Commonwealth, take up that “fallen standard” that Ted once took up himself, and ascribe to Kennedy’s legacy an appointment process worthy of this Commonwealth, enacting it just as brilliantly and wisely as he would have.