Scalia says he'd have difficulty winning confirmation now
BRISTOL, R.I.—U.S. Supreme Court Justice Antonin Scalia said Monday he would have had difficulty winning confirmation to the nation's highest court if he were nominated today because the public expects its judges to rewrite the Constitution rather than interpret the document narrowly based on its original intent.
Scalia, who was confirmed by the Senate in 1986 by a 98-0 margin, told students at the Roger Williams University law school that he wouldn't be able to get 60 votes now.
"The most important thing is whether this person will write the new Constitution that you like," Scalia said of the contemporary confirmation process.
"If the court's rewriting the Constitution, it's an enormously powerful political body -- and its selection will be done in a political fashion," he added.
Scalia participated in a question-and-answer session with students in the second visit to Rhode Island this year by a sitting Supreme Court justice. Chief Justice John Roberts visited in February for the centennial celebration of the federal courthouse in downtown Providence.
Scalia, an appointee of Ronald Reagan, spent much of the session defending his view of the Constitution as a legal, rather than "living," document. He said he interprets the provisions of the Constitution based on what the framers intended at the time they wrote and adopted them.
He said it was dangerous for interpretations to evolve over time and according to a particular judge's opinion.
"I am a textualist, I am an originalist. I am not a nut," Scalia said to laughter.
He said the Constitution, though a "remarkable piece of work," does not contain everything the public cares passionately about.
The right to an abortion, he said, is nowhere to be found in the Constitution though advocates on both sides use the document to bolster their respective positions. Debates over abortion and the death penalty, among other topics, are best left to legislatures rather than to the nation's highest court, he said.
"You want the right to abortion? Create it the way most rights are created in a democracy. Persuade your fellow citizens it's a good idea -- and pass a law," Scalia said. "You don't like the death penalty? Persuade your fellow citizens it's a bad idea and repeal it."
Though he is generally regarded as one of the court's more conservative justices, Scalia said his originalist theory of interpretation occasionally unites him with causes generally seen as liberal.
For instance, he was part of a majority opinion upholding the burning of the American flag as protected by the First Amendment and said he was a stout defender of the rights of criminal defendants.
"I ought to be the darling of the criminal defense bar because I have defended criminal defendants' rights -- because they're there in the original Constitution -- to a greater degree than most judges have," he said.
Though the event was billed by the law school as a question-and-answer session, Scalia spent much of the time lecturing students about his view of the Constitution. A handful of audience members got the chance to ask questions, including one who wanted to know what role international law should play in the American court system.
"What can a 20th century opinion from a French court possibly tell me about the original meaning of the Bill of Rights in 1791 in America? Absolutely zip. Absolutely nothing," Scalia replied.
On the other hand, he said, there's nothing wrong with judges seeking wisdom wherever they can find it.
