Luskin Keeps Digging

Everyone knows the first rule of holes: When you're in a hole, stop digging.

Apparently no one told Discovery Institute lackey Casey Luskin. He's still trying to pretend that their inane charges against the Judge in the Kitzmiller decision have any merit. Recall that their latest brainstorm is that Judge Jones, in following standard procedure by using verbatim portions of the plaintiff's proposed findings of fact in his opinion, somehow rendered himself a pawn of the ACLU.

Luskin persists in trying to make an issue out of this. Over at The Panda's Thumb, Tim Sandefur offers a reply.

So how's the debate going? Here's a typical exchange (Luskin first) ::

Do Courts Approve of this Practice?

The answer to this question is clearly “no”: The Third Circuit, which governs all federal courts in Pennsylvania, has strong law discouraging judges from simply adopting 'verbatim or near verbatim' the findings of fact of parties in a case. One Third Circuit ruling in 2005, In re: Community Bank of Northern Virginia, held that it is "highly disapproved of" for judges to adopt the briefs of parties in a "verbatim or near verbatim" fashion.1 In 2004, the Third Circuit also had harsh words for a judge which unilaterally adopted the recommendations of one party:

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.2

That second quote comes from the case Bright v. Westmoreland County. Here's Sandefur's reply:

Luskin cites Bright v. Westmoreland County, 380 F.3d 729 (3rd Cir. 2004), but the Bright court noted that “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.” Id. at 732.

That's completely different than what we have in Kitzmiller. An opinion includes both the findings of fact and the conclusions of law. Not even the DI's “study” shows that Judge Jones' opinion was somehow copied from the plaintiffs: it only shows that the judge adopted the findings of fact which were prepared by the plaintiffs--a procedure that the Bright case accepted as legitimate: “the linchpin in using findings of fact,” the court noted, “even when they are verbatim adoptions of the parties' proposals, is evidence that they are the product of the trial court's independent judgment.&rduqo; Id. at 732. The Kitzmiller decision is filled with evidence that Judge Jones exercised his independent judgment.

In Bright, the trial judge “indicated that [he] was going to grant appellee's motions to dismiss before it even received Bright's response to those motions. Indeed, Bright claims, again without a rebuttal, that he did not have the opportunity to object or even respond to the submitted opinion and order before the District Court adopted them as its own.” Id. The appellate court in Bright included the text of the trial judge's order and the proposed order, so that readers could be clear what that case was about. You can read it for yourself and see. Unlike the case here, the plaintiff drafted a complete judicial opinion, including the findings of law and beginning even with “This case arises from the tragic death of...”--unlike the proposed findings of fact that the plaintiffs offered in Kitzmiller, which were plain, perfectly acceptable statements of proposed findings of fact. Again, you can read Bright online yourself, and see the distinction.

See the original for links. Someone really needs to stop this fight. Luskin's blocking punches with his chin.