Scalia: Judges 'ain't what they used to be'

By Mark Sherman Associated Press WASHINGTON (AP) -- Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges. "Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said. He was responding to a question about what he sees as the greatest threat to the independence of judges. There are 91 vacancies among the 874 authorized federal judgeships -- including 32 labeled judicial emergencies by the Federal Judicial Conference, mainly because of a heavy caseload in those districts. The conference is headed by Chief Justice John Roberts. Scalia was joined by Justice Stephen Breyer for a wide-ranging discussion about the role of judges. The last appearance before this committee by a justice was four years ago. The last time Scalia and Breyer sat before the committee was during their confirmation hearings, in 1986 and 1994, respectively. Both were confirmed by overwhelming votes, without the drama that has characterized recent high court confirmations. At times, the session took on aspects of the running debate the two justices have had for years over how to interpret the Constitution. Scalia relies on the words of the document as he believes they were understood at the time they were written. Breyer's approach, sometimes called the living Constitution, tries to be true to the values of the Constitution as he applies them to a changing world. "I'm hopeful that the living constitution will die," Scalia said, not for the first time. The hearing was carried live on the C-Span network. Scalia was emphatic, though, in his opposition to televising arguments at the Supreme Court. He said most people would see only snippets of the proceedings, which he said were sure to be taken out of context. And he dismissed the notion that only cameras could capture the vibrant back-and-forth and tension in the courtroom. "We sit there like nine sticks on chairs. There's not a lot of dramatic motion," he said. Breyer said he too is leery of cameras, but has been more open to them. He said cameras at the arguments in a term-limits case a few years back would have shown the court at its best. "If they could have seen that across the country, they would have been able to see nine individuals struggling with an important constitutional question," Breyer said. Published: Fri, Oct 7, 2011