There’s an old saying that says if you find yourself in a hole, stop digging. Apparently the DI hasn’t learned how to do that. In the wake of their immensely silly “study” on the Dover ruling, they’re just making themselves look more and more ridiculous with every post on the DI blog. John West, the DI’s Liar in Chief, says that “Darwinists” (whatever that is today) are “in a tizzy” over the study. Well yes, if “in a tizzy” means “thoroughly and completely demolishing every one of our claims.”

This is the art of the non-answer. Nowhere does West attempt to actually answer any of the substantive criticisms leveled at his study. How could he? It’s all nonsense and he knows it. Better, then, to just dismiss all those criticisms as a “tizzy” and hope no one notices that he hasn’t actually said anything of substance in response to all the well-reasoned and detailed criticism the study has received. This, after all, is what propagandists do.

Rob Crowther, on the other hand, is trying his best to defend it, with a little help from noted legal scholar the DI’s Junior Birdman Casey Luskin. He dutifully quotes Luskin as the boy wonder tries really, really hard to find a few court precedents that support their contention that it’s improper for a judge to use portions of the proposed findings of fact in his ruling. Unfortunately for him, as Sandefur points out, none of the cases he cites are on point.

Luskin carefully tries to obscure that fact by citing only tiny, out of context portions of the ruling without telling the full story. He claims:

“In fact, the Third Circuit, which governs all federal courts in Pennsylvania, has strong case law discouraging judges from simply adopting ‘verbatim or near verbatim’ the findings of fact of parties in a case.”

He cites a case called Bright v. Westmoreland County and includes the following quote from it:

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.

Golly gee, if the practice used by that judge was similar to what Judge Jones did, this might really mean something, eh? Unsurprisingly, the two cases aren’t remotely like one another. As Sandefur points out, the judge in Bright was going to grant a motion to dismiss before even receiving briefs from the other side in response to the motion. The judge was going to adopt not only the findings of fact but the actual proposed opinion from one side in the case before even seeing the response from the appellee in the case. Clearly that distinguishes that case significantly from Jones’ ruling. But you don’t even need to make that logical argument; the ruling explicitly distinguishes the itself from the issue of verbatim adoption of findings of fact:

Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion. This fact, even standing alone, would be enough for us to distinguish the holdings in Anderson and Lansford-Coaldale. (emphasis in original)

This incredibly clear statement is found one paragraph before the section that Luskin cites. The ruling is very clear that it does not deal with a judge adopting findings of fact verbatim, but only with the judge’s legal opinion being taken verbatim from the proposed legal conclusions. That was not the case in the Dover case; even the DI cannot allege that. Luskin is being extremely dishonest with this out of context quotation, and I’m sure he knows that.

Just how dishonest is Luskin being? In this post, he actually cites Anderson v. Bessemer City. But look at the quote above from the Bright ruling: it says explicitly that this case is factually different from the one in Anderson and that the same conclusion does not apply. So he’s citing two cases as supporting the same point when the later case, in the ruling itself, just one paragraph before the quote he offers from it, says that this case is not at all like the other one he cites.

If you did that in a 2L con law class on a paper, you’d get hammered by the prof either for your inability to apply precedent correctly or for your lack of ethics for misquoting the ruling. As it turns out, though, he’s wrongly citing Anderson as well. Keep digging, guys.