The Scalia Standard

(Photo by Mark Wilson/Getty Images)

Kevin Ring President, Families Against Mandatory Minimums
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Before President Obama on Wednesday nominated appellate judge Merrick Garland to fill Antonin Scalia’s seat on the U.S. Supreme Court, some conservatives argued that Senate Republicans should hold Obama to the so-called “Biden Standard” and refuse to consider any nominee before the 2016 election. In 1992, then-Senator Joe Biden argued that Senate Democrats, who held a majority in the chamber, should not consider any High Court nominees made by President George H. W. Bush during that election year. While exposing rank hypocrisy is always a pitch worth swinging at, now that President Obama has announced his nominee, I humbly suggest that conservatives should replace the Biden Standard with the Scalia Standard.

As my friend conservative columnist Tim Carney recently recounted, Joe Biden in 1992 took to the Senate floor and urged President George H. W. Bush not to nominate anyone to the U.S. Supreme Court until after the November presidential election. As it turned out, no justices resigned that summer. But Biden shared his thoughts about how the Senate should respond if a vacancy arose and Bush put forward a nominee. Biden said:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

Thus was born the Biden Standard.

Today, Senate Republicans are being criticized by many on the left and in the media for putting Biden’s idea into practice. President Obama, having recently apologized for his 2006 Senate filibuster of Samuel Alito, says his nominee deserves the up-or-down vote he sought to deny Alito.

My view is that President Obama has a better argument than Senator Obama and that conservatives should aim higher than following a precedent set by Joe Biden. I think it’s time to embrace the Scalia Standard.

As I write in my new book, Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Justice Scalia was one of the most consequential Supreme Court justices in history. For nearly 30 years, he was the intellectual leader of the court’s conservatives. His views on how the Constitution and federal laws should be interpreted changed the court. And during his final years on the bench, his vote helped secure five-to-four victories in many key cases.

Given Scalia’s impact on the court and his role in preserving important narrow victories, conservatives in Congress have every right to hold any nominee to replace him to the high standard he set as a justice. Senate Republicans don’t need to deny Judge Garland the basic Senate process for reviewing nominees. To the contrary, Republicans should use the process to make their case to the American people that a judge who doesn’t share Justice Scalia’s judicial philosophy should not be confirmed at this time.

Senate Republicans, for example, could raise Justice Scalia’s landmark majority opinion in Heller v. DC, in which the Supreme Court by a five-to-four margin ruled that the Second Amendment protects an individual’s right to keep and bear arms, and ask: Is there anything in Justice Garland’s record that suggests he would protect this fundamental constitutional right? The answer would clearly be no.

Senate Republicans could explore many other areas, as well. Justice Scalia was an originalist who believed that the U.S. Constitution should be interpreted to mean what it meant to the people who ratified it. He rejected the notion that the Constitution was a “living” document because he feared its meaning could be changed to reflect the policy opinions of a majority of justices at any given time. Does Justice Garland subscribe to originalism, and, if not, what is his philosophy for interpreting the Constitution without imposing his values?

By all accounts, Judge Garland is a bright, agreeable, and experienced jurist. Under normal circumstances, his nomination might not elicit serious opposition. But these are not normal circumstances, and the seat he has been nominated to fill is not a normal seat. Justice Scalia was a giant. Conservatives should oppose any nominee who would seek from day one to undo Scalia’s judicial legacy. They should hold out for a nominee who shares Scalia’s belief that the Constitution was not designed to fix every social ill but rather to protect our fundamental freedoms and our ability to govern ourselves.

Justice Scalia set a high standard. That standard is what conservatives should use to assess Judge Garland or any other nominee. And they should not hesitate to reject Judge Garland or any other nominee who doesn’t meet the Scalia standard.

Kevin A. Ring is the author of the forthcoming book, Scalia’s Court: A Legacy of Landmark Opinions and Dissents.