“This volume beautifully conveys the essence of the confirmation hearing which turned into the most remarkable seminar on constitutional law in the history of the United States Senate. For four days Judge Robert Bork and the members of the Senate Judiciary Committee debated fundamental issues of original intent, First Amendment protections, equal protection of the laws, and the validity of Roe v. Wade.
“The exchanges were unique in their thoughtfulness and intensity. The result, however, was disastrous to Robert Bork, whose nomination to the Supreme Court by President Reagan was rejected by both the Judiciary Committee and the full Senate.
“Professor Shaffer has done a remarkable job of synthesizing and organizing the mass of material found in the Bork testimony, creating for the reader an exciting, absorbing intellectual and political adventure.”
— Mark Whitman, author of Brown v. Board of Education (available from Markus Wiener)
Richard Byrne’s interview with Ralph Shaffer in The Chronicle of Higher Education, Sept 2, 2005, reprinted in the review section:
Richard Byrne: Many nominees duck a wide-ranging discussion of their views, but you point to Mr. Bork’s relish for debate as a factor in his testimony. In light of the result, will we ever see another voluble nominee?
Ralph Shaffer: Nearly all of them will be more reticent. In fact, the five who have followed him have been more reticent. They did not want to talk … And before Bork, there really wasn’t a flashpoint to go into such a lengthy grilling. Bork was a flashpoint because of what he had written and the speeches that he made. All of this, and particularly the views which he held, sparked a considerable outpouring of concern on the part of Democrats. And Republicans on the committee tried to gloss over anything that he had written before by helping him restate it in a way that was more acceptable.
RB: There is an increasing paper trail on Mr. Roberts, though only a short record of his judicial writings. What parts of that paper trail should be fair game?
RS: It should all be fair game, quite frankly. I see no reason why one should presume that when he was a solicitor general that he was simply doing what his boss and his client wanted. The man must have had some feelings toward those particular issues of his own, therefore he could support them.
RB: What questions should senators ask Mr. [John] Roberts?
RS: They should ask the same kinds of questions that they asked Bork. For instance, original intent; Bork was very good on original intent, even if you didn’t agree with him. But he talked exactly and specifically about what it meant, and how complicated it was. That it was not just the framers of the Constitution, but the ratifiers as well … We have no idea what Roberts thinks about that.
RB: What political winds would need to be blowing to create a situation in which a nomination sparked similar discussion?
RS: The next time that there is a left-of-center president, if that ever happens, the conservatives will do to that candidate what the Democrats did to Bork. I’m sure there will be very probing questions under those conditions.