Dispatches from the Creation Wars

Moran Joins the Judge Bashing

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…

Comments

  1. #1 GH
    December 13, 2006

    I like Larry and some of his views(which could be said about many I suppose) but he is clearly off base here and would have been better not writing anything.

  2. #2 MisterDNA
    December 13, 2006

    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 truly disappoints me about Judge Jones is that he can’t really leap tall buildings in a single bound, run faster than a speeding bullet nor is he stronger than a locomotive.

    I’ll bet he isn’t even the inspiration behind Carly Simon’s “You’re So Vain”, as many have claimed.

  3. #3 kehrsam
    December 13, 2006

    Once again, this is simply a misubderstanding of what a judge does. Dr. Moran’s worst error is where he accuses Judge Jones of not being, “the brilliant man who was able to grasp complex scientific concepts in the blink of an eye.” That was never his job.

    Judges don’t get to just make it up on the fly. They are limited to the evidence in front of them, for better or worse. So Judge Jones took from the proposed Findings of Fact those he thought best supported by the evidence offerred; that he did not copy them verbatim indicates he was in fact proceding with caution and rejecting anything he thought extreme.

    Thus, the system worked exactly as it is supposed to. So what is Dr. Moran’s objection?

    By the way, Coin’s comment on Dr. Moran’s post is excellent.

  4. #4 Prup aka Jim Benton
    December 13, 2006

    I was blissfully unaware of the existence of Larry Moran until the recent ‘controversy.’ That followed by this statement caused me to read his most recent comments. At least it is good to have yet another confirmation of Prup’s Law. (“Whatever side you take on any politicial, religious, social, or sexual controversy, you are going to have some idiots agreeing with you.” for those who have not made a note of it before — and shame on you if you haven’t.)

    Moran isn’t even consistent. He would damn all religion or religious thought, of course. Except that, well, he ALSO says — speaking of Afghanistan:
    “A country that’s controlled by opium warlords who are little better than the Taliban.” (emphasis mine)
    http://sandwalk.blogspot.com/2006/12/non-confidence-on-afghanistan.html

    Without defending the warlords, to compare them to the Taliban would be ugly and stupid in almost any context. But given the fact that the Taliban may be the single most oppressive religious group in the world, this comment, coming from him, makes me want to send him a sign to post over his computer:
    “Make sure brain is engaged before putting your mouth in motion.”

    It’s a shame we don’t know some hyper-convincing evangelist, maybe with the power of the girl on HEROES, to turn him into a fundie. They deserve him.

    (Yes, this IS another grumpy morning in Brooklyn.)

  5. #5 Dan
    December 13, 2006

    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?”

    Actually, I don’t recall my response being quite so, shall we say, suitable for a family audience. There might have been an expletive or three thrown in for emphasis. Thanks for cleaning it up, Ed.

  6. #6 Jim Ramsey
    December 13, 2006

    Ed,

    Have you noticed that in making this particular argument that the adjective “activist” has disappeared?

    So the ID folk are objecting because the judge “judged” between two arguments presented to him and determined which was supported by the applicable law.

    Would they have preferred him to invent an entire new decisiion and come to a determination unrelated to what evidence and arguments were presented at trial?

    I thought such people were opposed to legislating from the bench.

  7. #7 raj
    December 13, 2006

    A good trial lawyer will prepare his proposed findings of fact and conclusions of law before trial, and, in the process, figure out how he’s going to prove each of the findings of fact (that is, what witnesses are needed, who is going to testify as to what, and so forth). That the judge here accepted the plaintiff’s findings of fact shows that the plaintiff’s lawyers were very careful in proving their case.

  8. #8 stogoe
    December 13, 2006

    I bet I’d be kicked out of your ‘Let’s not call Idiots Stupid’ clubhouse along with Larry, but I have to agree this is pretty dumb.

  9. #9 TomMil
    December 13, 2006

    Moran’s ignorance is worse than you or the other posters have described. Judges are prohibited from finding facts that are not presented to them. There is a a doctrine of “judicial notice” but that is for things like, “the sun rises in the east.” If Judge Jones had provided his own detailed facts about complex scientific issues he would have been taking “improper judicial notice”(even if he had a Phd. in Evolutionary Biology). Finding facts that were not presented in evidence would have deprived the ID crowd of Due Process. They would not have been able to challenge those facts in the hearing, and been denied the right of confrontation. If that were the case, they would have had a legitimate appealable issue with a certain reversal and remand of his decision. As things stand now, not so much.

  10. #10 Daniel Morgan
    December 13, 2006

    TomMil,

    Spot on.

  11. #11 Chris F.
    December 13, 2006

    Well, at least Larry acknowledges his error in his response to Coin’s comment rather than revising his blog post. I think a lot of people were probably unaware of the practice of using findings of fact verbatim in a court decision. Most of us just don’t have popular blogs in which to make our ignorance known.

  12. #12 pough
    December 13, 2006

    …and Moran’s response to Coin’s comment is:

    You are right. I have no one to blame but myself for thinking that Jones had become an expert on the definition of science. Those who let me keep on thinking that are completely blameless.

  13. #13 Coin
    December 13, 2006

    Yeah, I’m just about certain Moran was being 100% sarcastic in that comment.

  14. #14 Robert
    December 13, 2006

    I’m rather surprised that it took the discovery institute this long to even make this argument. Its picture perfect for them. They can show limited portions of truth and then spin it to look like the judge didn’t even think about the case (even though this is standard procedure).

    For Larry to parrot the DIs argument about a subject that he doesn’t know at all (law) is the worst kind of hypocrisy though. How mad do we get when we see lawyers and engineers making evolutionaryy claims? Its just as bad when biochemists make bad law claims. He really should have kept his mouth shut.

  15. #15 Anuminous
    December 13, 2006

    Would they have preferred him to invent an entire new decisiion and come to a determination unrelated to what evidence and arguments were presented at trial?

    Well of course they would. Can you imagine any other way for them to have won the case?

  16. #16 Anuminous
    December 13, 2006

    I left out:

    Activist judges are those who disagree with you. When a judge comes to a conclusion you agree with despite the evidence, they are strong and righteous!

  17. #17 pough
    December 13, 2006

    Sarcasm in print is dangerous to assume, one way or the other. I didn’t read it as sarcastic, but it certainly could have been written that way. If he wrote it honestly, he’s correct. Will this end up being BWII? (Blog War II)

  18. #18 Tyler DiPietro
    December 13, 2006

    “Sarcasm in print is dangerous to assume, one way or the other. I didn’t read it as sarcastic, but it certainly could have been written that way. If he wrote it honestly, he’s correct. Will this end up being BWII? (Blog War II)”

    If “SciBlogs BWII!” (note to all readers: all awesome things have titles that make them sound like action movies) breaks out, Larry will pretty much be on his own. I don’t know any other major blogger who’ll intervene on his intellectual behalf given the vapidity of what he’s been writing. Shame.

  19. #19 David
    December 13, 2006

    Why is it that the first thing that popped into my head was this picture: http://www.maniahill.com/images/morans.jpg ?

  20. #20 Coin
    December 13, 2006

    “SciBlogs BWII!” (note to all readers: all awesome things have titles that make them sound like action movies)

    Actually, as coincidence would have it, “BWii” is the semi-official name for Batallion Wars Wii, a sort of cross between Metal Slug and an RTS which is likely to be the first online-playable game for the Nintendo Wii released in the U.S..

    I am not sure what I’m expecting you to do with this information.

  21. #21 Tyler DiPietro
    December 13, 2006

    I am not sure what I’m expecting you to do with this information.

    I am, however. I will most certainly buy it. BWii is based roughly upon the Advance Wars series, which (along with it’s medieval fantasy counterpart, Fire Emblem) is among the best handheld strategy games ever IMO.

    However, I will have to say that it is secondary for my anticipation for Super Mario Galaxies and WarioWare: Smooth Moves.

    The Nintendo fanboy has spoken.

  22. #22 Stogoe
    December 14, 2006

    I never got into the RTS genre (being utterly bored out of my skull by building farm after farm after farm in the old Warcrafts), but I can’t wait for Smash Brothers and a sword-fighting game that is good (because Red Steel is getting a verbal thrashing by those who’ve touched it, apparently).

  23. #23 eric
    December 14, 2006

    Moran has gone all “arrogant Canadian brat” over this.

    http://sandwalk.blogspot.com/2006/12/lessons-from-culture-wars.html

    Someone needs a time-out.

  24. #24 Coin
    December 14, 2006

    Now Eric, it’s hardly fair to blame Canada for Larry Moran.

    By the way, does anybody know how Canadian law works re: the composition of findings of fact? Becuase I’d be highly surprised if Moran has bothered to learn anything about the subject himself

    Stogoe, there’s that “Dragon Quest Swords” thing coming out in the first half of next year, although it’s on rails. In the meantime you may want to consider at least giving Red Steel a rent; most of the people I’ve talked to said it was flawed-but-interesting enough that even though they didn’t like it, they’re curious to see a sequel. ( I wouldn’t know, I still haven’t managed to find a Wii for sale! :( )

  25. #25 386sx
    December 14, 2006

    Dr. Moran’s worst error is where he accuses Judge Jones of not being, “the brilliant man who was able to grasp complex scientific concepts in the blink of an eye.” That was never his job.

    So then I take it that if some hypothetical person said something like, “He has taken the time to really understand not just the legal issues, but the scientific ones as well,” then said hypothetical person might at the very least be guilty of a bit of hyperbole? You know, you judicial appeasers really get my goat sometimes. It’s all a part of the appeasement mentality, I guess.

  26. #26 DuWayne
    December 14, 2006

    386sx said –
    So then I take it that if some hypothetical person said something like, “He has taken the time to really understand not just the legal issues, but the scientific ones as well,” then said hypothetical person might at the very least be guilty of a bit of hyperbole?

    Why? The fact that he is copying the words of people who know the material does not mean he doesn’t understand the science. I understand a lot about science, in some cases, quite a lot. But while I can give a pretty reasonable overview of a subject, to other laymen, I am not capable of the precision that a scientist brings to an explanation. I may be a lot more interesting than the scientist giving technical detail, but there will be far more substance in the explanation by the scientist.

    For legal purposes, the technical language is relevant and important. Whatever his understanding, Judge Jones is a lay-person when it comes to the science described in this case. It would be negligence on his part to make the language his own, as it would lack detailed, technical substance.

    You know, you judicial appeasers really get my goat sometimes. It’s all a part of the appeasement mentality, I guess.

    Speaking for myself, I am not a “judicial appeaser.” I am a staunch supporter of the system of governance described in the U.S. constitution. An independant judiciary is a critical element to ensuring the rights of the individual. It is our security from tyrrany. It may not be perfect, but maybe you would like to live somewhere that doesn’t offer such security, I sure as hell wouldn’t.

  27. #27 doctorgoo
    December 14, 2006

    What the heck is meant by “judicial appeasers” anyway? It’s quite a meaningless phrase.

  28. #28 kehrsam
    December 14, 2006

    Well, I for one AM a judicial appeaser. Judges have a damn difficult job and get little in the way of support or recognition for it. To boot, no matter what they decide, there are going to be idiots from the other side making it something personal. It’s like being a politician, only judges don’t generally get to respond to the critics.

    Appeasement or not, my earlier post also had the merit of being correct: Judges do not have the liberty of making their own FoF and CoL: They pretty much have to chose the model put forward by one side or the other. If they don’t, the appeal is almost automatic.

  29. #29 Coin
    December 14, 2006

    What the heck is meant by “judicial appeasers” anyway? It’s quite a meaningless phrase.

    I find this just confusing. I guess the idea is that if we don’t stop the judges now, they’ll invade Poland?

  30. #30 386sx
    December 14, 2006

    The fact that he is copying the words of people who know the material does not mean he doesn’t understand the science.

    Maybe, but then just how exactly is it that we know that “He has taken the time to really understand not just the legal issues, but the scientific ones as well”?

    The fact that he is copying the words of people who know the material does not mean he doesn’t understand the science.

    I can play the same game too: The fact that he is copying the words of people who know the material does not mean that “He has taken the time to really understand not just the legal issues, but the scientific ones as well” is not hyperbole.

    Judicial appeasers, and Neville Chamberlain: two appeasers in a pod.

  31. #31 kehrsam
    December 14, 2006

    Guess what, 386sx: Yes, there are judges who don’t know science. That is why you get verdicts against vaccine companies when a family ends up with an autistic child. It happens. Basically, all I can say is that if you get a pseudoscience result in a case, the judge probably was over his head in terms of the science, assuming that it was a bench trial. Juries are crazy, and that is really all that can be said there.

    Lawyers tend to be generalists, judges more so. This is simply because the range of lawsuits covers every activity entered into by our society (quite literally). This means that depth of understanding can be lost. And so, “Expert Witnesses” are the key to many trials. In this case, the DI experts didn’t do a convincing presentation, so Judge Jones went with the Plaintiff’s. It was a good choice in terms of the science involved; not necessarily in terms of the larger sociological questions, but that wasn’t really the focus of the trial. It was a narrow issue: Is ID science, and, if so, does it belong in a high school science curriculum. Jones answered no to both questions, which was entirely reasonable in terms of the testimony offerred.

    Does this equal appeasement? Only if you believe that the trial truly offerred a rational choice between the position of the plaintiff and defense. Since it clearly did not, there really is no argument. Frankly, the DI needs to do some research and support the ID position with actual results. Based upon my theology, I would personally love that they do so. But I’m not holding my breath.

  32. #32 DuWayne
    December 15, 2006

    I can play the same game too: The fact that he is copying the words of people who know the material does not mean that “He has taken the time to really understand not just the legal issues, but the scientific ones as well” is not hyperbole.

    Personaly, I have never said that, don’t know enough about the case to say. But you don’t answer the argument that he damn well would be negligent to put it into his own words. For a legal document, I would like to see the ruling written with detailed, technical language, not laymen’s terms. Judge Jones is a judge, not a scientist. He is not qualified to write the technical aspects of this ruling, any more than a college student taking evolutionary biology classes would be. Does that mean they don’t understand it? Have you read the whole ruling, not just the copied portions to gauge his understanding?

    Judicial appeasers, and Neville Chamberlain: two appeasers in a pod.

    Wow, that’s clever. I suppose you think it would be much better if we didn’t have the security that our independent judiciary provides us. Do you really want to see our country run with the tyrrany of the majority? Do you want to see the results of pure democracy? Do you really think that you’ll be part of that majority? What if that majority shifts? What if they decide to take away rights that you would like to excercise? Who in the hell do you think will protect your rights, but an independant judiciary.

    All you want is a judiciary that rules the way you think it should. Sorry, it doesn’t work that way and damn good thing.

  33. #33 Torbjörn Larsson
    December 15, 2006

    Moran has put his foot in his mouth. For some reason he continues with the other foot. In his latest post where he implies that the intellectual standards of the legal and social “culture” is inferior. That gets my goat; goals and constraints differ, methods and measures of success do too. So I would hope his dismal foot work now has ended up getting him a bump in the rump, as they say.

    But he is actually not making worse errors than this post did. It was excellent until the last paragraph, pointing out ignorance and blather. But then to suggest that Moran has joined DI’s attacks when he merely displays his incredulity and ignorance is misdirection at best. It all fell down, unfortunately.

  34. #34 J. J. Ramsey
    December 16, 2006

    “But then to suggest that Moran has joined DI’s attacks when he merely displays his incredulity and ignorance is misdirection at best.”

    I don’t think that Brayton was trying to imply that Moran was deliberately making common cause with DI, only that he was joining in the dogpile on Jones that the DI started.

  35. #35 Torbjörn Larsson
    December 16, 2006

    J:
    That was my interpretation of “join … attacks” too.

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