Supreme Court Justice Antonin Scalia greets the audience at Roger Williams University School of Law yesterday.

The Providence Journal / Mary Murphy

BRISTOL — Supreme Court Justice Antonin Scalia recalled that when he was nominated for the high court 22 years ago, the Senate confirmed him by a vote of 98 to 0.

But “I couldn’t get 60 votes today,” Scalia told a Roger Williams University School of Law audience yesterday.

Scalia, a core member of the court’s conservative wing, made that point to illustrate how much the confirmation process has changed and to bolster his argument for originalism — the theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it.

“Once upon a time,” Scalia said, justices were chosen on the basis of whether the nominees had the required legal skills, honesty and judicial temperament.

Those are still considered good qualities, but now that originalism is being elbowed aside by the idea of a “living constitution,” Scalia said, “The most important thing is whether this person will write the new Constitution that you like.”

As a result, Scalia said, “You have confirmation hearings where they say: ‘Judge So-and-So, do you think there is a right to’ — you pick it, X, Y, Z, whatever you hate or love — ‘You think there’s a right to that? You don’t? Well, I think it’s there and my constituents think it’s there, and I’m certainly not going to put you on the court.”

“It’s crazy,” Scalia said. “It’s like having a mini constitutional convention every time you select a new justice.”

One student asked Scalia what advice he would give to Supreme Court nominees facing confirmation hearings today.

“I always thought it is the duty of anyone going through a confirmation hearing for a judgeship to answer as few questions as possible about how that person would vote as a judge,” he said. “Because it’s one thing to express a view in a law review article, or anywhere else, about how you would vote. When you get on the bench, that’s fine, you just change your mind. But when you make a commitment to your appointing committee — the Congress that approved you — that’s a commitment, and you feel a real pressure not to make a liar out of yourself.”

Scalia’s visit was arranged through Ronald A. Cass, a member of the Roger Williams University law school board and a former Boston University law school dean who rallied support for the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel Alito Jr.

The visit is part of the law school’s “Supreme Semester,” which gave students a chance to meet Roberts when he visited Rhode Island on Feb. 12 and will give them a chance to meet Alito in Washington, D.C., on April 14.

Yesterday morning, Scalia taught a constitutional law class and met with student leaders before speaking to 175 law students in the afternoon. After his speech, Scalia answered questions from law students, but reporters were not allowed to ask questions or to interview Scalia. Members of the media were given a list of restrictions, including a ban on video recording by television stations.

Reporters were allowed to bring tape recorders “for note-taking only, not for broadcast of any type.” In 2004, Scalia apologized after a deputy federal marshal told two Mississippi reporters to erase their recordings of a speech he gave at a high school, according to The New York Times.

Roger Williams University spokesman Michael Bowden said that until a few days ago, it appeared no media would be allowed to hear Scalia speak yesterday, but the school negotiated the restricted access.

Scalia said some people ask him when he first became an originalist, as if it is “some weird affliction” or as if they were asking, “When did you first start eating human flesh?” But, he said, “For most of our history, originalism was orthodoxy.”

Scalia rejected the argument that a “living constitution” offers greater flexibility. “Reading new stuff into the Constitution will bring you what a constitution always brings — rigidity,” he said. “You don’t need a constitution for flexibility. All you need is a legislature and a ballot box.”

“Living constitution” supporters want “the right to abortion to be the law from coast to coast, now and forever,” Scalia said. But while “both sides would like to read it to rigidify their position,” the Constitution says nothing about abortion, he said.

The Supreme Court legalized abortion in its Roe v. Wade ruling in 1973. Scalia, who joined the court in 1986, said, “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.”

Same goes for the death penalty, Scalia said. “Persuade your fellow citizens it’s a bad idea and repeal it, as some states have done,” he said. “And you can change your mind. If it turns out there are a lot more brutal murders, you can reintroduce the death penalty. That’s flexibility.”

Scalia said the originalist position sometimes produces a conservative result and other times a liberal result. For example, he cited two cases the Supreme Court decided on the same day in 1996.

In one case, the court ruled against a Colorado constitutional amendment that would have prevented cities and towns from protecting homosexuals from discrimination on the basis of their sexual orientation. “Liberals loved it and conservatives rent their garments,” Scalia said.

In the other case, the court said it was unconstitutional to impose $2 million in punitive damages on BMW because a new car had been scratched and repainted before someone bought it. This time, he said, “It was the conservatives who applauded and the liberals who rent their garments,” he said.

“I say a pox on both their houses,” Scalia said, explaining that he dissented in both opinions “because there is nothing in the Constitution on either issue.”

efitzpat@projo.com