The Discovery Institute’s Media Complaints Division, also known as their blog, has a new writer. His name is Michael Francisco and he’s a second year law student at Cornell. His first contribution to the ongoing diatribe against Judge Jones’ ruling in the Dover case is the subject of this post. In his essay, Francisco beats much the same dead horse that the DI was beating even before the ruling came out, the entirely false notion that Judge Jones had no justification for ruling on the scientific status of ID. I will show that not only was he justifed in doing so, he had no choice but to do so. Here’s Francisco’s take on it:
Judges should only be deciding matters of law, not declaring as authoritative his opinion on matters of politics, or philosophy, or science…the Kitzmiller opinion has no legal basis to determine the scientific status of intelligent design, and as such, is merely the opinion of one man, not the law as proclaimed by a federal district court judge.
Perhaps because Francisco is only a second year law student, he seems to be unaware of the fact that judges must, of necessity, make the kinds of judgements he is objecting to every day. In fact, they have no choice but to do so. In cases involving medical or engineering malpractice, for example, both sides will present expert scientific witnesses who will present their theoretical explanations of what happened and who or what is to blame and the judge must determine which side is right. They have no choice; there simply is no alternative. The Federal rules of evidence require that the trial judge make those determinations, as the court said explicitly (and unanimously) in Daubert:
The Rules – especially Rule 702 – place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. The reliability standard is established by Rule 702’s requirement that an expert’s testimony pertain to “scientific…knowledge,” since the adjective “scientific” implies a grounding in science’s methods and procedures, while the word “knowledge” connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule’s requirement that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue” goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility…the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.
This makes clear not only that judges must consider and resolve these types of questions about the scientific nature of a claim, but that they must do so on precisely the same grounds that Judge Jones does so in the Dover ruling – testability, acceptance in the scientific community, peer review and publication, and so forth. And bear in mind that as a district court judge, Jones was bound to follow this ruling and apply those standards. Further one must recognize that the specific precedents dealing with this issue – McLean v. Arkansas and Edwards v. Aguillard – both addressed the question of whether the alternative being offered to evolution was genuinely scientific or merely religion dressed up in scientific-sounding language. Again, Judge Jones had no choice but to follow those precedents and apply the same type of analysis to them.
Just as importantly, one must bear in mind that the issues in the case were framed not by the judge but by the attorneys for the two sides. And in this case, the defense strategy was to argue that ID is not religious but is rather a genuine scientific theory. From the opening statement of the defense:
Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.
Defendants’ expert will show this Court that intelligent design theory, IDT, is science, a theory that’s advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education.
They even brought in two of the Discovery Institute’s fellows (and tried to bring in three more) to testify in support of that strategy and argue that ID is scientific. Thus, Judge Jones had no choice but to evaluate those arguments and rule on them. It was the key argument in the case by the defense. There is a third reason why the scientific status of ID had to be ruled upon and Francisco quotes it directly in his post. In the Edwards decision, the Court specifically said that a genuinely scientific critique to evolution was permissable:
We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.
Francisco quotes this but doesn’t take the obvious next step – the court says a scientific critique is allowed but who decides whether the critique is scientific or not? Only the judge can do that, of course. The legislature in Louisiana asserted that creation science was scientific and not religious as well, but the court found otherwise. So Judge Jones simply had no choice but to rule on that question. The defense was arguing that it fit that exception carved out in Edwards and the plaintiffs said otherwise. The judge must rule on that issue or he’s not following precedent.
It is ironic that the Discovery Institute would send its own fellows to testify that ID is science and then claim, when the ruling went against them, that the judge has no authority to rule on that issue. Had the judge ruled instead that ID is legitimately scientific, do you think we would be hearing about his lack of authority to do so? I’d put the odds of that well on the other side of Dembski’s universal probability boundary. So we’ve got a new contributor peddling the same old hypocritical nonsense.