Posted by Larry Farma has left a long comment in response to my post about the DI’s claim that Judge Jones should not have ruled on the scientific status of ID in the Dover case. Because that post is getting old and the comment is so long, I figured it should be moved up top and responded to in its own post. I’ll go argument by argument, as usual.
Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., discussed in preceding comments, concern only the rules for making a judgment of expert scientific testimony, and have nothing to do with determining when such a judgment should be made.
This is true, of course, but not terribly relevant. There can’t be any simple rule on when such a judgement should be made; the rule has to be “whenever such a judgement is relevant to the case and the legal matter at issue.” Given that the bulk of the defense strategy in this case was making the argument that because ID is a genuine scientific theory it isn’t inherently religious and therefore not subject to Edwards, the issue was absolutely relevant to the legal question at the core of the case.
(1) Judge Jones could have decided the case solely on the basis of the religious motivations of the former school board members — he could even have thrown out the case as moot because those members had been replaced by anti-ID members. He did not have to rule on the scientific merits of ID. Before the decision was released, the best legal experts in the country were not able to predict whether he would rule on the scientific merits of ID — so much for the idea that he was compelled to rule on that issue.
The fact that he could have ruled solely on one basis does not mean he was wrong to rule on both. Surely Mr. Farma knows that such complaints are usually filed with multiple grounds and the court may rule on one, some or all of them depending on both factual and legal considerations that arise during trial. As for the “best legal experts in the country”, this is little more than empty rhetoric. If Mr. Farma can quote from those experts and what they said before the ruling came down, I’ll be happy to look at it. But I followed this case very closely and read virtually every article that appeared in the media anywhere while it was going on and I don’t recall seeing much of anything in the way of predictions from the “best legal experts in the country.” I can tell you that the attorneys involved in the case were quite confident that he would rule on the question and so was nearly every one of the legal scholars I talked to about it (and there were many) during the trial. I’ll also note the irony that the same people who usually scream bloody murder about the vagueness of the purpose prong of the Lemon test are here suddenly arguing that only the purpose prong should have been considered.
(2) Judge Jones was generally careful to cite the procedural rules and precedents governing his Dover opinion, but this opinion does not mention Rule 702 or the Daubert case, showing that he probably did not know what rules he was supposed to follow regarding judging expert scientific testimony.
This is absurd. If you really think a Federal judge did not know about the Federal rules of evidence or the Daubert case, you’re nuts. Every 2nd year law student knows those things. I would suggest that the real reason he doesn’t bother to justify this particular part of his ruling is because, contrary to the silly claims of the DI, it’s not even a matter of controversy. Every precedent in the case considered that issue and ruled on it, both the plaintiffs and the defense made it the key to their legal cases, and it clearly was directly germane to the question at hand. The only ones raising a stink about this are people with a vested interest in seeing it come out the other way.
(3) The decision to join the plaintiffs in asking Jones to rule on the scientific merits of ID was made by the defendants and their attorneys from the Thomas More Law Center, not by the Discovery Institute.
This is both false and irrelevant. The DI sent their own fellows to make the argument; they could have refused to do so, of course. And it’s irrelevant because the DI’s argument in this regard is still wrong.
(4) One of the two amicus briefs submitted by the Discovery Institute actually asked Judge Jones to not rule on the scientific merits of ID. This first DI brief, submitted on behalf of 85 scientists, was admitted to the case file by Jones. The second DI amicus brief, DI’s own brief, was not admitted to the case file by Jones. This brief presumably argued that ID is science just in case Jones was going to rule on that issue. See “Amicus curiae filings” in http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District_trial_documents
Not quite true. The DI’s brief was initially rejected for two reasons. First, because it included all of the expert testimony of William Dembski, who was withdrawn as a witness. The judge agreed with the plaintiff’s argument that you cannot allow in expert testimony that is not subject to cross examination. Second, because the DI had filed the brief improperly. He did, however, allow the DI to file an amended brief and request and they did so. But the real reply here is “so what?”. Yes, the DI said from the beginning that they didn’t want the judge to rule on the scientific status of ID; that does not mean that the judge shouldn’t have ruled on that question, it just means the DI didn’t want him to.
(5) Judge Jones did not have to rule on the question of ID as science just because both sides asked him to.
Not solely because of that, no, but it would have been highly unusual for him not to do so for several reasons. First, because this question was clearly germane to the legal question. The crux of the defense’s position was that ID is not a religious idea because it is, instead, a genuine scientific theory. That was the centerpiece of their entire case, without which they had no case left. Second, because the precedents all involved answering that same question. It would have been very, very strange had the judge chosen to ignore the bulk of argument from both sides in the case when those arguments were on the same issue that the higher court precedents considered and ruled on.
(6) A very, very important issue is the degree of scrutiny that should be used in judging scientific merit. In the Daubert v. Merrell Pharmaceuticals case, a huge amount of dollars of liability hinged on the issue of the validity of expert testimony that a drug likely caused birth defects, so the courts had be sure that this testimony was nearly airtight. However, in the Dover case, all Judge Jones had to do to allow ID into public-school science classrooms was just rule that ID has just a little scientific merit. In the Daubert case, the judgment of scientific merit was used to determine liability for damages, but in the Dover case the judgment of scientific merit was used to determine existence of secular purpose. There is a huge difference.
But not a relevant difference that speaks to the question of whether the judge should have ruled on this question. And you’re wrong that all Jones had to do to allow ID in was to determine that ID had “just a little scientific merit”. The precedents clearly stated that as long as the idea advances and endorses the notion of a supernatural creator, it is inherently religious in nature, so that would trigger the effect prong of the Lemon test, and of course the purpose prong is still alive as well.
(7) In Edwards v. Aguillard, there was no decision regarding the scientific merits of creation science. Because the expert witnesses offered on the side of creation science had not participated in the enactment or implementation of the law in question, the Supreme Court ruled, “The District Court, in its discretion, properly concluded that a ‘ Monday-morning battle of the experts ‘ over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.”
It’s true that the court in Edwards relied primarily on the purpose prong, but this doesn’t mean much unless “creation science” is inherently religious. If it is scientific rather than religious then mandating it in schools does not advance religion. The equation of creation science with an explicitly religious viewpoint was absolutely a part of the court’s analysis in Edwards. The Court held:
The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 == E-422 (noting that “creation scientists” point to high probability that life was “created by an intelligent mind”). Senator Keith also cited testimony from other experts to support the creation-science view that “a creator [was] responsible for the universe and everything in it.” 2 App. E-497. The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind.
Thus, according to the precedent that Judge Jones was bound to follow, as long as ID involved a “supernatural creator”, that was enough to make it a religious belief and therefore trigger the effect prong of the Lemon test as well as the purpose prong.
(8)The McLean v. Arkansas Board of Education opinion did not rule that evolution is a science, but only ruled that evolution is not a religion. This opinion said in Sec. V(C), ” Assuming for the purposes of argument, however, that evolution is a religion or religious tenet, the remedy is to stop the teaching of evolution, not establish another religion in opposition to it. Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause ….”
I have no idea why this is at all relevant to this discussion. The scientific status of evolution was not in question in this case, only the scientific status of ID was in question.
Judge Jones is a megalomaniac who wanted to earn a big name in history as the judge who scuttled ID. I think that his decision has backfired, as it looks like he has earned a place in infamy as one of the most activist judges in American history.
*yawn* More inflated and absurd rhetoric without any justification. Given the weakness of your arguments above, I would tone down such statements to what you can justify.
January 30, 2006
January 30, 2006