During a Wednesday Senate Judiciary Committee hearing, Scalia made his comment in response to a question about whether the confirmation process has a chilling effect on attracting high-quality judicial talent.
Scalia said that in addition to salary levels and an increasingly rigorous and partisan confirmation process, the numerosity of issues federal judges now handle contributed to a decline in the quality of judges.
If you want excellent federal judges, you want an elite group and it's not as elite as you used to be, Scalia said.
Scalia and his colleague Justice Stephen Breyer gave a rare two-hour testimony to the Senate Judiciary Committee about the role of the Supreme Court.
Though both hold starkly different judicial philosophies on constitutionality -- Scalia looks to the framers' original intent and Breyer believes in a living constitution -- they were collegial, even ribbing one another.
I hope the living constitution will die, Scalia said, drawing some chuckles.
He also said that the idea of a living constitution aided the increasingly controversial confirmation proceedings.
When you indeed have a Supreme Court that believes the constitution means what it ought to mean in today's times, it seems to me a very fair question for the Senate to ask... what kind of constitution would you write, he said.
Breyer gave a defense of his judicial philosophy, saying that he applies the values of the U.S. Constitution's framers and apply them to a world that is far beyond what the U.S.' founding fathers could imagine. Values are virtually eternal, but the circumstances changes, Breyer said. A lot of our job is to apply the values in the Constitution.