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Ten Myths About Dover: #2: "Judge Jones Is a Brilliant, Neutral Legal Scholar Who Figured Out ID"

Sarah Chaffee

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Editor’s note: The Kitzmiller v. Dover decision has been the subject of much media attention and many misinterpretations from pro-Darwin lobby groups. With the tenth anniversary of Kitzmiller approaching on December 20 — tomorrow! — Evolution News offers a series of ten articles debunking common myths about the case. Look here for Myths 123456789, and 10.

The Darwin lobby was overjoyed at the Kitzmiller v. Dover decision, which banned intelligent design in Dover classrooms. In the media and elsewhere, Judge Jones was praised as impartial and his ruling as brilliant.

Expert witness for the plaintiffs Kenneth Miller told the New York Times, “I think the judge really nailed it.”

When Time named Jones one of the most influential people of the year in 2006, in its “Scientists & Thinkers” category, the magazine stated:

Intelligent design was indeed a euphemism specially intended to get around judges. But it didn’t get past Jones…He now finds himself an unlikely hero for scientists, many of whom credit his decision with taking some steam out of the intelligent-design movement.

But Judge Jones’s agreement (or disagreement) with one’s particular viewpoint does not necessarily make him an exemplar judge. Indeed, there are several logical and legal reasons that his decision should not have earned him such ecstatic accolades.

As Discovery Institute has long contended, Judge Jones’s ruling that “ID is not science” amounted to judicial activism. Some ID critics have claimed that since Jones was appointed by George W. Bush, a Republican, this means he must be objective and neutral, thus confirming the credibility of his decision. Kevin Padian, expert witness for the plaintiffs, and Nick Matzke of the National Center for Science Education wrote:

Judge John E. Jones III is a churchgoer, a lifelong Republican, appointed to his Federal position by President George W. Bush. As a New York Times piece recently noted:

His supporters include Senators Arlen Specter and Rick Santorum of Pennsylvania, and his mentor is Tom Ridge, the former governor of Pennsylvania and homeland security secretary.

Arlen Specter, Tom Ridge, and Rick Santorum. Not exactly your typical liberal coalition. Wait a minute! Isn’t Santorum the one who tried to introduce Intelligent Design into the “No Child Left Behind” Act? Doesn’t the DI pull his strings when it comes to pronouncements on science and education? These are heavy hitters, well connected to the current administration. From the outset, an impartial observer might have expected that Judge Jones would be predisposed toward the Bush-endorsed concept of ID.

Padian and Matzke think that, being a Republican appointee, Jones ought to have been ideologically predisposed to support ID, if intelligent design had any merit.

But the argument cuts both ways. Some who ought to be ideologically predisposed to support Judge Jones’s ruling — if it had any merit — have, in fact, severely criticized it. For example, a leading anti-ID legal scholar, Jay D. Wexler, wrote:

The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion.

Padian and Matzke forget that judges often turn out to represent ideological views far removed from those of the presidents who appointed them. As John G. West notes of Judge Jones:

Regarding the fact that he is a Republican appointed by a Republican President: So what? The most liberal activist member of the current United States Supreme Court (John Paul Stevens) was appointed not by Bill Clinton but by Republican President Gerald Ford. President Ronald Reagan, meanwhile, appointed a number of judges (at all levels) who turned out to be just as liberal as any Democratic appointees. Only someone with scant knowledge of judicial appointments over the past few decades would claim that the fact that a Republican president appointed a judge would mean that the judge could not be a judicial liberal or an activist.

Most importantly, those who praise the Dover ruling because of Judge Jones’s supposed ideological leadings are committing the genetic fallacy — in reverse. Committing the genetic fallacy means discounting an argument because of its source. Here, Matzke claims Jones couldn’t have been activist because of his background. Matzke commends the argument of the ruling because of its source.

As for the merit of that ruling, Judge Jones only had the authority to decide whether the Dover school board’s policy violated the First Amendment. That was the question before him. But he strayed so far from his proper role as to rule on whether or not intelligent design is science, and whether or not evolution is compatible with religion.

The media, of course, have praised him for his brilliance. Time, for example, said this:

….He displayed not only a quick wit in the courtroom but also an easy grasp of complex arguments about such things as the molecular motor that drives the bacterial flagellum — which the creationists believe has “irreducible complexity” and therefore could not have been designed except by a designer. Perhaps now, after Jones, people will accept that if they want to teach children about God, they should do so in church, not in science classes.

But does the part of his ruling on ID as religion in fact demonstrate careful analysis, even-handed consideration, and thoughtful application of precedent? Not really. On the contrary, John West and David DeWolf found that a full 90.9 percent of that section was copied, either verbatim or nearly verbatim, from a brief submitted by the plaintiffs’ attorney. So Judge Jones didn’t even come up with his own ideas about ID. It appears he largely copied them from an ACLU brief.

We are not saying that his copying amounts to plagiarism. It is common practice for courts to borrow from briefs submitted by a party. However, this sort of verbatim or near-verbatim copying is frowned upon. As the Third Circuit noted in Bright v. Westmoreland County:

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.

What’s more, attorneys are hired to win, not to engage in meticulous scholarly analysis. They typically offer a variety of arguments on behalf of their clients — some stronger than others. Copying from one side’s brief means that a judge is likely to incorporate overstatements by attorneys into a ruling. So it was here. In the Dover case, Jones’s opinion carried over errors from the plaintiffs’ brief.

For example, the ACLU claimed:

He [Behe] was confronted with the fifty-eight peer-reviewed publications, nine books and several immunology text-book chapters about the evolution of the immune system, P256, 280, 281, 283, 747, 748, 755 and 743, and he insisted that this was still not sufficient evidence of evolution — it was “not good enough.”

Judge Jones’s ruling contained a nearly identical statement,

He [Behe] was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not “good enough.”

But the transcript of Behe’s cross-examination shows that the ACLU and Judge Jones misquoted Behe:

Q. ….Now, these articles rebut your assertion that scientific literature has no answers on the origin of the vertebrate immune system?

A. No, they certainly do not. My answer, or my argument is that the literature has no detailed rigorous explanations for how complex biochemical systems could arise by a random mutation and natural selection and these articles do not address that.

Q. So these are not good enough?

A. They’re wonderful articles. They’re very interesting. They simply just don’t address the question that I pose.

And in another exchange:

Q. Is that your position today that these articles aren’t good enough, you need to see a step-by-step description?

A. These articles are excellent articles I assume. However, they do not address the question that I am posing. So it’s not that they aren’t good enough. It’s simply that they are addressed to a different subject. [Emphasis added.]

What Behe said was, “It’s not that they aren’t good enough,” yet the ACLU, and Judge Jones, claimed that he said that they are “not good enough.”

Behe meant that these papers look at DNA sequence similarity and infer common ancestry based upon that evidence. But his argument wasn’t against common ancestry. It was against the mutation-selection mechanism as a source of evolutionary creativity — a very different question. Judge Jones, guided by the ACLU, missed the point.

Similarly, on the issue of ID research, the plaintiff’s brief claimed, “Intelligent design is not supported by any peer-reviewed research, data or publications.” Likewise, Judge Jones in his ruling said, “The evidence presented in this case demonstrates that ID is not supported by any peer-reviewed research, data or publications.”

Yet, as John West and David DeWolf note:

Expert witness Scott Minnich testified at trial that there were between “seven and ten” peer-reviewed papers supporting ID, and he discussed a pro-intelligent design article in the peer-reviewed biology journal, Proceedings of the Biological Society of Washington. Additional peer-reviewed publications were listed in an annotated bibliography submitted in an amicus brief accepted as part of the official court record by Judge Jones.

As Casey Luskin wrote yesterday (“Ten Myths About Dover: #3, ‘Intelligent Design Has No Peer-Reviewed Research or Publications’“), quite a few peer-reviewed publications were documented to Judge Jones, and the ID movement has now published over eighty peer-reviewed publications reporting much ID research. But Judge Jones got this wrong, too — again, because he apparently copied false claims from an ACLU brief.

Judicial opinions are supposed to be carefully thought out and based upon solid evidence brought up in trial. Was Jones’s ruling on ID really the meticulous work of an impartial jurist? Hardly. His extensive copying and the errors this introduced should undermine confidence in his ruling. Any fair critic who wants to show that ID is something other than science needs to turn, for confirmation, to other arguments and other sources.

Image: � LoloStock / Dollar Photo Club.

Sarah Chaffee

Now a teacher, Sarah Chaffee served as Program Officer in Education and Public Policy at Discovery Institute’s Center for Science and Culture. She earned her B.A. in Government. During college she interned at Representative Jaime Herrera Beutler’s office and for Prison Fellowship Ministries. Before coming to Discovery, she worked for a private land trust with holdings in the Southwest.



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