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The hearing at home: Professor of law testifies before Senate Judiciary Committee

A group of students protest the nomination hearings of Brett Kavanaugh outside of Thompson Library on Oct. 4. Credit: Sam Raudins | Social Media Editor

Before Brett Kavanaugh and Dr. Christine Blasey Ford sat at a table in front of the U.S. Senate Judiciary Committee, that chair was occupied by Ohio State professor Peter Shane.

Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Moritz College of Law, was summoned by the Democrats on the committee to testify on Sept. 7 about topics he has devoted 37 years to: the law and the presidency. In this case, he spoke in terms of Kavanaugh’s views on the president’s discretion under the U.S. Constitution.

Prior to any Supreme Court nomination, both parties on the committee call upon expert witnesses to identify the issues they most want to highlight given the public narrative they want to create, Shane said.

One of the issues that the minority party sought to highlight was Kavanaugh’s views on presidential power. Shane’s academic specialty in “the relationship between the judiciary and the president” caused his name to surface as a witness.

Despite his expertise, Shane was surprised when he received the email from the committee. He recognized it was “exciting and affirming,” but also a lot of responsibility.

“It’s a responsibility that you don’t have much time to prepare for,” Shane said.

Shane was required to prepare five minutes of commentary and no more than 10 pages of prepared testimony. He had two weeks’ notice, and all of the materials had to be submitted 48 hours before the testimony.

“Condensing what you want to say into those very brief formats and making it accessible to a nonlawyer audience, even beyond the senators themselves, it takes time,” Shane said.

Christopher Walker, associate professor of law, said Shane’s research and experience has had an impact on the law school.

“For Peter to be able to be identified as a leading scholar on presidential control of the administrative state is a really, really big deal,” Walker said.

Fortunately, speaking ‘intelligibly’ about law is not unfamiliar to Shane as he teaches class multiple times per week.

Shane’s testimony centered on the idea that Kavanaugh’s conservative ideas on the extent of the president’s power would influence the Supreme Court’s future decisions on such questions.

“My concern is that Judge Kavanaugh, both on and off the bench, has crusaded for an extreme interpretation of the president’s constitutional powers that could effectively undermine a president’s accountability to law and to this Congress,” Shane said in his testimony.

Shane outlined three major concerns about Kavanaugh in his testimony: his adherence to unitary executive theory — the idea that the president should have total control over the executive branch, his role as staff secretary to former President George W. Bush during claims regarding the reach of presidential power and his advocate’s approach to questions of presidential power.

After Shane’s five-minute testimony, questioning began.

“In a hearing like this, almost all of the questions you will be asked are from the side that asked you to come,” Shane said.

However, Shane was surprised the first question he was asked came from Republican senator Chuck Grassley, the chairman of the judiciary committee. Grassley’s question suggested that Shane’s arguments were being made because Kavanaugh is conservative.

“Is it because you fear having a voice like that on the Supreme Court under any conditions, or is it because you think that his being on the Supreme Court may make a majority?” Grassley said.

This was the only question Shane was asked by a Republican.

“I worry about having the most executive power-indulgent Supreme Court since the end of World War II,” Shane replied.

Although Shane was summoned by the Democrats, he also had voiced concerns about executive overreach under Democratic administrations in the past.

This was the highest-profile testimony Shane has given, and he said he felt like if he had more time, he would’ve liked to practice with his colleagues.

“If I had had an extra week, I probably would’ve enlisted some of my colleagues to listen to my testimony and pepper me with questions, particularly some of my more conservative colleagues who could give me an idea of what hard questions might be,” Shane said.

Walker described Shane as a “generous mentor” as well as a “loud, careful and important voice,” and said his testimony provided an eye-opening experience for students as well.

“Students, you take the classes from the professors that teach them, and you enjoy that, right?” Walker said. “Sometimes, you kind of lose sight that these professors are writing really cutting edge, important work.”