As if it wasn’t bad enough that we have the Discovery Institute throwing ignorant criticisms at Judge Jones, now Larry Moran has joined their chorus of absurdity. He writes:
Apparently Judge Jones copied the most “scientific” parts of his decision from the ACLU ‘Findings of Fact and Conclusions of Law’ that was submitted a month before the decision was published. I’m told that this is standard practice. Judges often rely heavily on written submissions from the side they support. I’m told that it’s common for judges to copy from those submissions.
That may be true–I have no reason to doubt it–but it does make a difference to me. The legal significance of the decision doesn’t change but my opinion of Judge Jones does. He is no longer the brilliant man who was able to grasp complex scientific concepts in the blink of an eye. He’s able to discern who’s right and who’s wrong, but that’s all.
What a patently silly criticism. What does Moran expect, that Judge Jones was going to invent his own arguments? That’s not what judges do. When it comes to findings of fact, the judge does nothing more than determine which set of facts presented by the two sides is better supported by the evidence. Having decided that, can it really reasonably be argued that the difference between him being “brilliant” and being something less than brilliant is what percentage of the text he bothered to reword? Of course not.
Remember, we’re talking about maybe 20 pages out of a 139-page decision. We’re talking about a set of statements of fact, not legal arguments, where both sides presented their statements and the judge’s job is to determine which set is best supported by the evidence presented in the case. Had he made the very same statements, but used different words to say the same thing, would that make the opinion more or less valid? Nope. Does it have anything to do with how well he understood the issues? Not a bit.
Now, the question is, who really wrote the ACLU “Finding of Fact?” Did they know from the beginning that the Jones decision had incorporated a lot of their material? If so, why did they leave us with the impression that Judge Jones “has taken the time to really understand not just the legal issues, but the scientific ones as well?”
Well Larry, I can answer those questions. The findings of fact were writen by the legal team,working with the various consultants in the case who were helping them on the scientific side (the expert witnesses, the NCSE staff, and even some others in our broader community). Every single one of us knew that the ruling had closely followed the proposed findings of fact.
I know this because the day the ruling came down, my phone rang off the hook (as well as the messaging software on my computer) and virtually every conversation started the same way: “Are you reading this? We won on every single argument we made. I could have written this decision myself.” The fact that the ruling so closely follows those proposed findings means one thing only: it means that we won the arguments. The other side phrased their arguments in precisely the same manner, even speaking in the voice of the judge (“This Court finds…”) precisely because that is what you want the judge to do.
There are some people who knew all along that Jones had copied the ACLU Findings. I’m a little diappointed that they didn’t let on. Instead, they left it to the Discovery Institute to reveal the truth.
This disappointment is based upon nothing more or less than utter ignorance of how court rulings are written and how court filings are handled. Everyone who read the briefs and the ruling knew that this particular section followed the proposed findings closely; all that means is that we knew that we had established every one of our arguments on a strong evidential basis during the trial. This isn’t some big secret everyone kept. No one has ever considered it anything but the norm because that is precisely what it is.
There are only two kinds of people who could claim to find this “study” in any way surprising or distressing: demagogues (like the DI) and those who simply aren’t aware that this is the entire purpose of filing proposed findings of fact and is absolutely normal. Why on earth do they think those proposed findings are written in the judge’s voice? Because it is normal and expected that whichever argument the judge determines is true, the court’s findings of fact are going to be very similar to the winning side’s findings of fact.
Anyone with even a modicum of knowledge of how this process works was not the least bit surprised by what the DI is now trying to make a big deal out of. Sandefur, whose entire career is filing cases and writing briefs in such cases, understood that this is absolutely the norm. When I called Dan Ray and read to him the claim from the DI, his immediate response was, in essence, “Well duh. What do they think the proposed findings of fact are for?” Only those with no experience in following civil court rulings are going to find this to be anything unusual or scandlous.
What all this ignorant blather, by both the DI and by Moran, comes down to is the ridiculous assertion that once the judge determined which statements of fact were correct and best supported by the evidential record in the trial, he should have reworded more of those arguments more often and more severely than he did, and that failure to do so undermines either the validity of his ruling or his intelligence.
I can understand why the DI takes this position; hell, they have to. What else do they have other than cheap attacks? But I can’t for the life of me understand why Moran would join them in their absurd attacks. The DI threw out this rotting carcas of nonsense as bait and Moran swallowed it hook, line and sinker. Worse yet, he’s using his ignorant misunderstanding of the legal process as a pretext for attacking the character of those of us who wrote about the trial and claim that we were covering up this absolute non-story. As I said before, with friends like these…