Dover Case

Behe and Literature Bluffing in Kitzmiller

stcynic — Fri, 11 Aug 2006 09:01:01 +0000

Behe and Literature Bluffing in Kitzmiller

A reader emailed me a link to this post over at Dembski's blog, and I intended to reply to it today. Alas, Wes Elsberry beat me to it and probably did a better job than I would have done anyway.

stcynic Fri, 08/11/2006 - 05:01

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Dover Case

Once Behe testified that he was unfamiliar with a particular book or article they should have objected to any further reference to it or use of it.

My, but wouldn't that have been convenient?

If I'm ever on trial for murder, I hope I get BarryA for a judge.

PROSECUTOR:
Mr. Evans, isn't this the gun you used to shoot the victim in the head?

ME:
What? I'm not familiar with that gun.

DEFENSE LAWYER:
Objection!

JUDGE:
Sustained.

ME:
This is so easy! I can't wait to kill someone else!

My own personal standard is that if I don't have to be talked into participation then it must be a game.

Ack! I put my comment on the wrong post! So sorry!

On a related matter -- this is too funny to have been scripted:

Official Cries Foul as Liberals Take Over Kansas Education Board
Agape Press, August 11, 2006
Incumbent Connie Morris, a conservative member of the Kansas State Board, of Education claims the "lying liberal media" defeated her in last week's primary election ... the now unseated Republican incumbent asserts, opponents of Kansas' recently enacted science standards derailed her campaign, even as they similarly attacked other conservatives running for re-election. "We just had a lot coming against us," she explains, including "a lot of well-funded, loud, obnoxious, rude people who have no ethics and morals, and they don't bat an eye at lying and manipulating the truth."
Nor do such liberal opportunists mind "slandering people and harming their families and their reputation and their business and their communities and their state," Morris continues. "It's a shame," she adds. "It's a shame, and I feel bad for them when they face God on Judgment Day."
Although four born-again Christians remain on the State Board of Education, Morris believes the newly empowered liberal majority will waste no time adopting new science standards. In January, she says, when the new members are sworn in, the Board will likely rescind the existing standards and adopt new ones that "let government schools teach children that we are no more than chaotic, random mutants."

chaotic, random mutants.

That might make a good name for a rock band.

Good article, Rhampton.

Gee, Ms. Morris, tell us how you really feel. She claims the other side has bad-mouthed her when she's condemning them to HELL?

And while I don't consider myself to be a chaotic, random mutant, I'm not sure why it should unduly bruise my self-esteem if I did. Is she planning to start a Chapter of Planned Mutanthood ("Every mutant a planned mutant")?

Dave's Solo Performance, Act 2

stcynic — Mon, 03 Jul 2006 10:26:50 +0000

Dave's Solo Performance, Act 2

I thought I was done pummeling DaveScot's immeasurable ignorance on this issue, but then I saw this comment where he interjects his thoughts in bold. It's just astonishing how someone can be so wrong about virtually everything and be totally unaware of it. It's like the perfect storm of stupidity. And you're gonna love how he's backpeddling now. After the commenter informs him of what I've already told him, that even if you got a jury trial the jury could only decide on the issie of damages, not on the constitutional questions, he now says he knew that:

This is my understanding as well.

Uh, yeah. Does anyone really believe that he knew that a day or two ago when he posted that nonsene? Of course not. It was clear that he actually believed that the jury would be the ones to decide whether the Constitution was violated or not and that the jury would be unlikely to find that it was in that case. So here's how he's frantically spinning this to make it seem like he meant that all along:

Keep in mind that the jury makes the fact findings and the judge is obliged to use those findings of fact (see latter part of the 7th amendment below). I don't see how the judge could rule for the plaintiffs in the injunctive relief case when a jury didn't find sufficient facts to support it.

As my buddy Dan just said to me on the phone, Dave is the master at digging a hole for himself and then jumping in and continuing to dig until eventually he's covered himself over. He backs up one ignorant statement by pretending to know the opposite all along, and then defends it with an equally ignorant statement. Juries are, of course, the primary finders of fact, but they are finders of fact only in relation to the verdict they are empowered to render.

Even in the totally implausible case that you got both a jury trial (on the damages issue) and a judge trial (on the injunctive or declaratory issues) - implausible because, as we keep explaining to him, awards of fees and costs do not magically become punitive damages just because he wants to relabel them - the jury would not issue any "findings of fact" that the judge would be obliged to accept. Dave really seems to think that the jury in such a case would decide, for instance, whether or not the school board had a religious purpose in mind when they passed the policy, or whether or not ID is substantially a religious doctrine. But that is false. The jury would not issue any findings of fact on that matter, only the judge would decide those questions. He's constructed this bizarre hypothetical and imposed his own set of rules on it. It's quite looney. But he's not done yet.

This jury/no jury thing is really just a power struggle between authoritarian and democratic inclinations. Judges naturally have little desire to give up part of their power to a jury. I'm usually inclined towards dilution of power by democratic means when possible and practical.

Well that's great, Dave, but that's not the system we have. The Constitution provides for unelected judges with lifetime appointments precisely for the purpose of avoiding having their decisions second-guessed and overruled by "democratic inclinations". In fact, as they wrote the constitution originally, judges were even confirmed for the bench by an unelected body (the Senate, which was appointed as the Constitution was originally written, not elected). The founding fathers clearly didn't share Dave's democratic vision.

Maybe every U.S. citizen should be obliged to serve four years in the military in order to better appreciate the democracy you're defending in it.

Or maybe every US citizen should learn the history of the Constitution. When Dave was in the military, he was not obliged to defend "democracy", he was obliged to defend the Constitution. And that document is, in many ways, anti-democratic. Where democracy and liberty are in conflict, the Constitution comes down squarely in favor of liberty and against democracy. That was the entire purpose of the Bill of Rights, to place our liberty outside the reach of democratic decision making.

And one of the primary features of our constitutional system is that matters of constitutional interpretation are decided not by democratic majorities but by unelected judges. And they gave those judges lifetime appointments for the express purpose of insulating them from any influence by democratic majorities. Forget about every citizen serving in the military, let's make every citizen read the Federalist papers, particularly those that explained and defended the role of the judiciary.

Read Federalist 78, which clearly explains that judges were to serve as an "intermediate body" between "the people and the legislature" and that they were empowered "to keep the latter within the limits assigned to their authority". The power to decide constitutional questions was given to those judges quite intentionally. Hamilton writes, "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." And why did he say that? Because, he argued, without this safeguard against the whim of democratic majorities to destroy liberty, none of our rights are safe:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The Constitution was written to protect our liberty, not to protect "democracy". And the founders fully realized that a democratic government was just as likely, in some cases perhaps more so, to violate our inalienable rights as a king or a dictator. And they believed that having judges, beholden to the Constitution and not to the will of the people, with the power to strike down even the most popular acts if they are contrary to the Constitution, was the best way to do so. History has proven them correct, and thus proven Dave wrong. As usual.

stcynic Mon, 07/03/2006 - 06:26

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Dover Case

Davetard - The perfect "auto-dick". He reminds me of myself when I was young - smarter that everyone, and dumber than paint. Dave - take my advice. Learn to think before you speak (or write!) Also, Dave, it is actually another kind of knowledge to realize that you do NOT and can not know all the answers. And of course realizing when someone, like a Buffalo Bill Dembski is bullsh**ing you and using you. Other wise you may say your IQ is 150, but othes will say that if you could take Davetards brain out of his head, and roll it down the sharp edge of a razor blade, it would look like a bpwling ball rolling down the middle of a 4 lane highway.

HTH

Excuse, me I pulled a Davetard myself! I meant to say:
if you could take Davetards brain out of his head, and roll it down the sharp edge of a razor blade, it would look like a "bowling ball" rolling down the middle of a 4 lane highway. Maybe my mistake is a sign from the Designer that his brain is more like a tennis ball...

Of course not. It was clear that he actually believed that the jury would be the ones to decide whether the Constitution was violated or not and that the jury would be unlikely to find that it was in that case.

Or that the jury would agree that it was violated, but still actually rule that it wasn't. That's where jury nullification comes in.

please someone tell me that SaveScot is an inside joke, after reading many of his fumbles I cannot possibly believe this is a real person. This must be Dempski in Drag.
Fess up, tell the truth Bill, DaveScot is your alter ego and shows up only on fool moon nights. Remember, we can buy silver bullets.

Davetard - The perfect "auto-dick". He reminds me of myself when I was young - smarter that everyone, and dumber than paint.

Posted by: J-Dog

Yep. I was like Davescot. When I was 17. I don't know how any of my acquaintences put up with it. I feel sorry for Davetard's long-suffering family.

please someone tell me that SaveScot is an inside joke, after reading many of his fumbles I cannot possibly believe this is a real person. This must be Dempski in Drag.
Fess up, tell the truth Bill, DaveScot is your alter ego and shows up only on fool moon nights. Remember, we can buy silver bullets.

Posted by: richCares [TypeKey Profile Page] | July 4, 2006 01:42 AM

I assure you, Davetard is the Real Deal. Over at AtBC http://www.antievolution.org/cgi-bin/ikonboard/ikonboard.cgi?act=SF;f=14 we have a whole thread dedicated to mocking Uncommonly Dense, but for the most part, it winds up being 90% mocking Davetard. Check that thread out, it's a goldmine of hilarious stupidity.

It's just astonishing how someone can be so wrong about virtually everything and be totally unaware of it. It's like the perfect storm of stupidity.

Funny that you ask this question because I just ran across an article about this sort of thing on another blog ("Dangerous Intersections") titled: Beware of confident people. They might be ignorant of their own ignorance.

Check it out at:

http://dangerousintersection.org/?p=292

DaveScot gets reined in by Dembski:

http://www.uncommondescent.com/index.php/archives/1288

Well, he does have a computer science/computer programming background. Add to that an anti-Darwin hysteria, and you've got some invincible ignorance bolstered by absolute overconfidence in one's own correctness.

It is actually pretty common in creationist circles, though most are not quite as obnoxious and overbearing as the Tardster...

Well, he does have a computer science/computer programming background.

Meaning what? Are you suguesting that it is possible for us in the computer science field to ever be wrong and not know it?

Sandefur Replies to DaveScot

stcynic — Mon, 03 Jul 2006 10:17:55 +0000

Sandefur Replies to DaveScot

Sandefur took a short break from his travels to briefly reply to DaveScot's terminal cluelessness in a post titled "Why DaveScot Should Stop Playing Lawyer". I'll just quote the first paragraph:

DaveScot is an especially belligerent idiot who was happily adopted as a co-blogger by the credibility-free Intelligent Design proponent William Dembski. Normally, I ignore idiots. But DaveScot has lately dragged my name into a dispute with Ed Brayton--a dispute Brayton was happily and handily winning, as usual--and I thought perhaps I should explain just why DaveScot should stop talking about things he doesn't understand. (Which, of course, would render him silent.)

Dave attempted to argue that I should talk to Sandefur about juries; the truth is that Dave just needs to read more thoroughly and do a little research before opening his mouth. But then, if he did that, he'd lose all of his charm and ability to entertain us, wouldn't he?

stcynic Mon, 07/03/2006 - 06:17

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Dover Case

Dave just needs to read more thoroughly and do a little research before opening his mouth.

Something tells me it goes a bit deeper than that. Even with both you and Sandefur explaining it quite clearly, I look forward to Dave's next effort to dig the hole even deeper. He's chronically unable to keep his mouth shut, even when he hasn't the slightest clue what he's talking about.

So Dave predicted that Sandefur would agree with him, and he has since been proven wrong. How much do you want to bet that Dave is going to change his Hypothesis?

Sandefur makes an interesting point about Dave's suggestion on adjusting the $20 figure that didn't occur to me when I first read it. Dave wants to increase that figure to, as Sandefur calculates, nearly $800, and then deny the jury option to everyone under that amount. This from the man who thinks judges are basically dictators. Of course, if we take his other suggestion about making legal fees count as punitive, not many trials are going to run with less than $800 in the newly defined "punitive damages."

And Dave's Solo Act

stcynic — Sun, 02 Jul 2006 17:39:39 +0000

And Dave's Solo Act

If DaveScot didn't exist, it would be necessary to invent him. Who could give up the constant amusement of watching him take brave leaps in the dark and land with a resounding thud? Here's his latest, where he entirely misreads a post by Sandefur at the Panda's Thumb and still doesn't get the distinction between what juries can and cannot judge. He's still trying to find some credibility for his claim that if the damages had been over $20 in the Dover case, then a jury would have heard the case and likely would not have ruled the way the judge did. He claims that Sandefur agrees with him and disagrees with me; he is wrong. Here's the portion he quotes from Sandefur:

But there's a rule that says that you can't have a jury when you're asking for an injunction, only when you're asking for damages. This goes back to the old common law days. At the time the Constitution was written, courts were divided into the law courts and the equity courts. If you wanted money damages, you would go to a law court. If you wanted an injunction, you would go to an equity court. You could only have juries in law courts, not equity courts. Nowadays the two kinds of courts have been combined. But you're still only entitled to a jury trial in cases seeking "law"-type remedies--that is, money damages--not in cases seeking "equity"-type remedies, such as an injunction.

He emphasizes the part in bold. Now here's what he's missing completely: our courts perform both functions, as courts of law and courts of equity. So what would actually happen if someone sued for both injunctive/declaratory relief and money damages that went over $20? There would be a mixed trial, heard by both a judge and a jury, each of which would determine different parts of the case. The jury would be empowered only to decide the question of damages, while the judge would rule on the request for injunctive or declaratory relief. Why? Juries are finders of fact. They cannot issue injunctions or declarations of relief. Here's a legal reference for you, Dave:

Only judges can grant injunctions. Juries cannot decide injunctions because juries do not issue orders. Only judges issue orders. You can ask both for an injunction and for money damages in a complaint. Then, the judge will decide your injunction while the jury will decide your money damages (if you wish to have a jury trial on that part of your case).

And of course, all of this relies on the equally ridiculous notion that if you call reimbursement of legal fees punitive damages, they magically become punitive damages. Reimbursement of legal fees is allowed in all civil rights cases where the government is challenged, and that is for a reason entirely different from why we provide punitive damages. Congress was clear on the reasons why it wanted such reimbursement and there were two primary reasons. First, because if the government is acting unconstitutionally and the court agrees, a citizen should not be forced to spend their own money in order to stop the government from doing so. Second, because it allows citizens to attract competent counsel by which to pursue such cases against the government. Those are all good things, of course, and Dave would no doubt support them in any other case. But if he doesn't like the outcome of those cases, like all juveniles, he throws a fit and stomps his feet and wants to change the rules.

But Dave isn't done being a dolt yet. He still has this question to ask:

If you don't believe this was part of the ACLU strategy ask yourself what other reason there might have been for NOT asking for punitive damages if not to avoid a jury trial?

Gee Dave, maybe because they weren't interested in making money over the issue? Maybe what they were after is what they got, injunctive relief from an unconstitutional policy. The fact is, the only reason they asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case. The plaintiffs weren't trying to get rich off the case. They weren't seeking to punish the school district. They wanted an injunction to prevent them from violating the Constitution and that's what they got.

Stop for a moment, Dave, and think about this: why don't the ACLJ or the ADF ask for punitive damages in cases like Lamb's Chapel? Because they want to avoid a jury trial? Of course not. Juries would be more sympathetic to their case than judges would. It's because when someone files a case against the government on a constitutional issue, they don't do it to make money. They do it out of principle, even if you don't agree with that principle. They're suing to have their rights restored, not to have their bank account increased. And it's also because they know that no matter what they ask for in damages, the constitutional issue can only be decided by a judge, not a jury.

stcynic Sun, 07/02/2006 - 13:39

Tags

Dover Case

In fairness, Dave did also previously say (before the trial) that Judge Jones would likely side with the defense because of his alliances, so it's probable that Dave just has a hard time thinking outside of personal gain.

But if he doesn't like the outcome of those cases, like all juveniles, he throws a fit and stomps his feet and wants to change the rules.

I would like to see a scenario out of It's a Wonderful Life where three law professors show Dave what the world would be like for all cases if his made-up rules were adopted.

"...but Professor Nader, a jury in Massachusetts is too liberal to decide to outlaw gay marriage! I think we should put the question to a judge!"
"Sorry Dave, but because your attorney's fees are over $500,000 already, and since someone might call them punitive damages, the jury figures it all out. This, of course, is in line with your crazy rules regarding jury nullification."

"He claims that Sandefur agrees with me; he is wrong."

With *him*, you mean?

Ooops, yes. I changed that.

Dave and Larry remind me of the picketers I meet weekly as an escort at a Planned Parenthood clinic. Their literature and taunts explicitly say that PP offers abortions to make lots and lots of money ("It's all about the money," they shout.) The truth, as you might expect, is somewhat different.

Abortion involves only five percent of patient visits. Of our local PP clinic group (we operate four clinics) 31% of our revenue comes from private donations. Fifteen percent comes from government grants. And slightly less than 50% comes from patient fees. But to provide abortions requires air tight security. For that we (I'm on the board there) employ a part time armed guard, use four video cameras and recorders, have bullet proof glass with seven layers of glass and six layers of plastic (plus standard Thermopane glazing) in all our windows, a full time security system with electrically locking doors throughout the interior, and special adapters on the ventilators on the roof (to prevent the injection of noxious fumes).

Do we make money on abortions? Of course not. Every abortion we provide costs PP more money than it takes in as revenue from any source, and that doesn't even begin to consider the costs of the security steps outlined above). So the allegation that PP offers abortions for profit is a total canard. But like Larry and DaveScot, the truth is never an impediment, if ignorance or lies serve one's purposes better

So what are the odds that:

1) Mr. Sandefur will contact Dave to let him know just how badly he's mangled this?

2) Dave, if so corrected, will admit he was wrong and not erase the thread?

I must admit that I was not expecting DaveScot to actually acknowledge your posts, but there it is.

dochocson-

The odds of the first are pretty good, but Tim is traveling for the holidays at the moment, presumably with his lovely fiance Erin, and won't be able to respond for a while. I did tell him about it, however. As for the second, I think the odds of DaveScot admitting he was wrong about something are roughly equal to the odds of Carrot Top winning Best Actor at next year's Academy Awards.

Nonsense - Carrot Top isn't THAT BAD of an actor.

Keanus:
To be fair to the PP protesters, their principal argument is not that PP makes that much off of abortions, but that the physicians providing the abortions made lots of money, and that this group is actually controlling the show, with PP just being a figurehead. At least that was the argument I got when I was a Congressional aide meeting with interest groups.

I'm not sure that the conspiracy theory explanation is better either from a logical or moral perspective, seeing as it smacks of propaganda such as "Der ewige Jude." Still, we should try to be correct about these things.

Kehrsam, you'd be right about the money except that the physicians who work with PP that I know are on full time salary or a one-day-a-week contract. They are not paid by the procedure. The one I know personally at one time had a full time private practice but found that the malpractice premiums had grown so that she no longer could make a decent living, so she joined PP (to which she'd long been an adviser). Her salary is adequate but well below her peers in other specialties. PP affiliates nationwide avoid the malpractice premiums by self-insuring for all its medical services through a nationwide pool. That keeps operating costs much lower than they would be in private practice.

I should also add that the physicians who perform abortions for PP have to keep a very low profile and engage in all kinds of subterfuges to shield their families from harm. Ones I've known have been tailed and harassed by protesters, received many phone calls and mails threatening bodily harm, and had their children harassed at school. They have to endure more abuse than anyone I know in public life and that takes a toll, both financial and emotional. Becoming affluent is not an option on their dance card of choice. To allege that the motivation of PP and their physicians is money is as absurd as saying the same thing about the ACLU. The facts support neither argument.

I agree with everything you say. I was just trying to bring out a small point in how the pro-life side argues. I haven't been lobbied on the issue in a few years as well. The change in physician affiliation may well have made the pro-choicers change their talking points and they haven't bothered to let me know. '-)

Do you think it reasonable to spend $2.5 million dollars in legal costs to get an injunction where no actual damage was done? Give me a break. This is gaming the system. Exhorbitant legal fees are being used as a proxy for punitive damages. Thanks for strengthening my point by showing there was really no cause of action for damages. But they sure damaged that impoverished little school district with the far out of proportion legal costs. -ds

So DaveScot, when you are headed to court you'll skimp on the legal representation? Who is the arbiter of how much representation is valid in any given court case?

Larry's Solo Act

stcynic — Sun, 02 Jul 2006 10:43:47 +0000

Larry's Solo Act

Dave and Larry don't always perform together, of course. Larry has his own act, which can be seen at his blog pretty much every day. And he's continued to peddle nonsense on this issue over there.

(1) The attorney fee awards that defendants must pay in establishment clause cases are often draconian. The Dover school board was soaked for $1 million in fees, though the board deserved little more than a slap on the wrist, if even that much.

But as I keep saying, they only claim the government agency - and that's what a school is - got "soaked" or was "intimidated" by the ACLU when they disagree with the outcome. The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance? Obviously, because they agree with the outcome of the case (and I do too, by the way, in both of those cases).

And of course, there are a few facts that Larry and other defenders of the Dover school board continue to pretend don't exist. Like the fact that the Dover board ignored the advice of their own legal counsel when they passed the policy. They were told that they would lose in court and face enormous costs and they ignored that advice. Even the Discovery Institute told them that they would lose such a lawsuit, and yet they continued with it. And shortly after the case started, they were offered the chance to rescind the policy and settle the case without any financial cost and they still refused to do it. And on top of that, at least 2 of them flat out lied on the witness stand. But none of that matters to these dolts. All that matters is that they don't like the result of such cases, so whatever has to be done to make them stop is what they'll advocate - no matter how stupid or hypocritical it obviously is.

What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment."

Ah, more of that trenchant legal analysis from Fafarman. But he is misinterpreting both Shakespeare and reality. Shakespeare said a rose by any other name would still smell as sweet, meaning what you call something doesn't change what it actually is. You can call the reimbursement of legal fees "punitive damages" but that doesn't actually make them turn into punitive damages. You can call your dog a chicken if you want, but it's still not gonna lay eggs for you. And even if it was punitive damages, this is an equity case, not a criminal case. The 8th amendment applies to punishments imposed by the government in criminal cases, not to what the government itself has to pay when it violates the constitution.

(2) The ACLU, the Americans United for Separation of Church and State, Darwinists, etc., make no bones about the fact that one of the main purposes of these attorney fee awards is intimidation.

So what? The ADF, the ACLJ and other conservative Christian legal groups say the same thing when they win, that they hope it will deter other agencies from violating the Constitution. Remember, guys, we should want to deter the government from acting unconstitutionally. That's a good thing, not a bad thing.

(3) Rip-off artists ACLU and AUSCS uses these lawsuits as a major means of fundraising. The ACLU has its own staff attorneys, but outside attorneys who represent the ACLU in litigation work for free and all the attorney fee awards go to the ACLU.

Nonsense. First of all, the ACLU has very few staff attorneys. Only in the last 3 years have they managed to fund the hiring of a single attorney on staff at all of its chapters around the country. The ACLU had one attorney assigned to this case, and that was only part time (as the legal director of the chapter, he undoubtedly had numerous other cases to deal with as well). Second, the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.

But notice how these guys turn the enormous generosity of Pepper Hamilton into a bad thing. That law firm took an enormous financial hit on this case. Every hour that one of their attorneys spent on this case was an hour they weren't billing someone for, and that includes three partners whose hourly fee is probably a minimum of $300 an hour. That they agreed to be reimbursed only for expenses (which still undoubtedly ran into hundreds of thousands of dollars) speaks volumes about their commitment to principle. They took a huge financial hit, and bear in mind that if they'd lost the case it would have been even bigger.

But such cases are an anamoly. Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it, so their portion of that reimbursement is small. Also bear in mind that, by law, the money they get for such fees can only be used to pay for more legal work. And also remember that there are some cases that they lose, or that end up being settled early on for no financial gain. The fact is that the vast majority of the ACLU's funding comes not from the reimbursement of legal fees in the cases they win, but by donations and grants.

(5) Establishment clause lawsuits -- as well as free exercise lawsuits -- are an area of the law that is highly uncertain, inconsistent, and unpredictable. This is especially true because of the infamous Lemon test, which applies only to establishment clause cases. These factors of uncertainty in combination with the threat of an exorbitant attorney fee award often intimidate governments into avoiding actions that the courts might determine to be constitutional.

LOL. If that was the case, then why are there are so many obvious losing cases pursued in the courts? Everyone, even the Discovery Institute, told the Dover board that they were gonna lose this case. The outcome wasn't in any great doubt, everyone knew from the start that they were going to lose. The only question was whether it would be a narrow loss or a broad one. The same is true of lots of free exercise cases where one is just baffled by why the government agency continues to pursue them when the outcome is obvious. The case in Colorado last week involving access to public facilities is a perfect example. The city is going to lose that case and they're going to lose badly, based on precedents that were equally ridiculous to pursue. In the Lamb's Chapel case, the legal principle was so obvious that the ACLJ and the ACLU were on the same side, yet the school district kept pressing that case all the way to the Supreme Court - where they got smacked down with a unanimous ruling. Are there some cases in church/state law that are ambiguous and difficult to predict? Of course. But Dover wasn't one of them, nor are most such cases.

(6) It seems to be generally assumed that only the plaintiffs are eligible for an attorney fee award, but there is no such provision in the fee-shifting statute, 42 USC Â§1988(b), which only provides for an attorney fee award to the "prevailing party."

Ah Larry, you should have read one clause further. What it actually says is "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Where the defendant is the government, it is indeed only the plaintiff who is eligible for reimbursement.

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC Â§1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

Larry's ability to distort the meaning of a court case appears to have no practical boundaries at all. Follow the link to the case above, read it, and tell me if you think his reading of the ruling is even close to reality. First of all, the decision was unanimous. Unanimous decisions are pretty rare, and reserved only for the most obviously correct decisions - serious no-brainers. So if one is going to challenge the validity of a unanimous ruling by the Court, let's just say the standard is pretty high for showing it to be unwarranted. And Larry doesn't even come close to meeting such a standard.

The issue in the case was how to actually calculate "reasonable fees" in such cases. The standard way to calculate such fees was to take the number of hours worked on the case and multiply by the average billable rate in that region, but the respondent complained that this drove up the fees and argued that they should be calculated according to "the cost of providing legal services rather than according to the prevailing market rate." But the Solicitor General, representing the executive branch of the government, urged the court to apply the cost standard only to cases where the plaintiff is represented by a non-profit legal group.

First of all, it's not at all clear that this would have any effect on a case like Dover at all. The ACLU was a party to the case, yes, but so was the private law firm of Pepper Hamilton. Even if the solicitor general had won the argument before the court, it would not change the standard for reimbursement of the legal fees charged by a private firm such as that. And Larry - surprise, surprise - only quoted part of the sentence that the court quoted. Here's the full statement:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, are correctly applied in such cases as Stanford Daily v. Zurcher, Davis v. County of Los Angeles; and Swann v. Charlotte-Mecklenburg Board of Education. These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976).

Please note two things about this statement. First, that he leaves out the second justification given by the Congress for using market rates as the prevailing standard - because it helps plaintiffs in such cases attract competent counsel. Second, that it explicitly cites several previous court cases as including "the appropriate standards". Larry left those citations out of his quote, but the court of course had to refer to them for a full understanding of what the statute required as the legal standard for how such fees are determined. And what did the court find? It's in the very next sentence of the ruling:

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

But bear in mind that the section that Larry quoted only applies to the issue of how to calculate such costs, not to the issue of whether one should calculate them differently if the plaintiffs are represented by a non-profit group. The court addressed that question immediately after the portion of the ruling that Larry cites. Keep in mind Larry's claim above - he says that the court ruled that the fees can't be reduced because the attorneys are from a non-profit group only because they "erroneously interpreted" a sentence from the House report (a sentence that didn't actually have to do with that issue at all, of course). Now let's look at why the Court actually ruled that way:

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher and Davis v. County of Los Angeles make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." In Davis, the court held: "In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney's fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees."

Larry could not possibly be any more wrong. The Congress explicitly said that the standards to be applied for determining reasonable fees are found in those Supreme Court cases. And in those Supreme Court cases, the court had made clear that the non-profit status of the attorneys representing the plaintiff were irrelevant and that market rates were the prevailing standard. This is as clear as a ruling could possibly be, which of course explains why it was unanimous. And Larry's presentation of the legal justification offered by the court is distorted beyond all semblance of rationality. If he offered such an argument in a paper for a Con Law 1 class, he would be flunked.

stcynic Sun, 07/02/2006 - 06:43

Tags

Dover Case

Dear god, why can't they let this go? Their side lost the Dover case! They need to learn to deal with this fact and move on with their lives.

Dear god, why can't they let this go? Their side lost the Dover case! They need to learn to deal with this fact and move on with their lives.

Good question. In Larry's case it's because he's got serious psychiatric problems and he's essentially 'perseverating' on this case, as they say in special education.

In Dave's case, he's fundamentally incapable of admitting it when he's wrong or when he has no idea what he's talking about, plus the ID crowd were totally banking their salvation on a gallant Bush-appointed judge coming along like a knight on a horse and saving them. When the nice Bush-appointed judge came along, he basically looked at them and laughed. Not what Dave was expecting. So he's still a little unhinged from it.

anomaly (sp.)

"Why can't they let this go?" Because the entire "cdesign proponentsist" movement is, at its root, driven by the inability of certain people to let go of their prejudices, mistaken understandings, and just plain obsolete worldviews. Without the inability to let such things go, there would be no creationist movement to begin with.

PS: I just took a quick look at poor Larry's post. What a sad, sorry case...

A small quibble: Neither the ACLU nor Pepper Hamilton were parties in Kitzmiller; rather, they were both legal counsel for the Plaintiffs.

A fair point, Mr. Fair. Thanks for correcting my poor wording.

The Dave and Larry Show

stcynic — Sun, 02 Jul 2006 09:43:07 +0000

The Dave and Larry Show

DaveScot and Larry Fafarman really should take their act on the road, I think. I'd pay money to see these keystone cops try and explain legal concepts to each other and argue about it, wouldn't you? Dave's post on jury nullification continues to provide much amusement. As Dan said in a comment, when Larry is the voice of reason in a thread, that's frightening. Dave's claim is that there should be a right to trial by jury in such cases because of the 7th amendment. But even BarryA, an ID supporter and apparently an attorney, has debunked Dave's argument:

The phrase "suits at common law" is were your argument goes off the track. Way back in the day they had courts known as "common law courts" or "law courts" and courts known as "courts of equity." The distinction between law and equity still exists even though jurisdiction over the two areas has been merged in the federal courts and most state courts. Why is this important? Dover was a suit for injunctive relief. As such it was an equitable action, not a "suit at common law." There is no right to a jury (and never has been) in a case seeking equitable relief such as an injuction, and the Seventh Amendment does not apply.

And he's right. The right to a trial by jury applies to criminal cases and to civil cases that ask for punitive damages. Civil cases that ask for only injunctive or declaratory relief, as is the case with constitutional law cases that seek only to have the courts tell the government agency to stop violating the constitution, are suits of equity, not suits at common law, and there is no right to a trial by jury in such cases. And all Dave's rhetoric about defendants deserving a "jury of their peers" is quite silly, since it's not an individual being sued, it's the government. The government has no peers, of course, and matters of constitutional law are decided by judges, not by juries.

Larry left a comment pointing Dave to my response to his absurd claims in this regard. Naturally, Larry is wrong about most of what he said. For instance, he says:

Ed made some really big bloopers in the above article. For example, he assumed that the ACLU is getting only a small part of the attorney fee award. Wrong. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State -- see http://www.yorkdispatch.com/local/ci_3535139

What Larry doesn't know is what a staggering bill there is for expenses in this case. Pepper Hamilton picked up the entire bill for the expenses in this case, and those expenses were enormous. They agreed to forego the billable hours for the attorneys and paralegals (and that was well over a million dollars worth on its own), but the expenses left over are still enormous. They covered the full cost of discovery, the full cost of all of the depositions that had to be taken (including travel and housing expenses either for the witness or for the attorneys and necessary support staff), the full cost of compiling and organizing all of the evidence, depositions, witness reports and so forth (all of which was converted into digital format for use during the trial with a state of the art computer system and the people to set it up and run it every day in court), plus all the usual costs of travel, meals, accomodations, conference room space and such during the trial itself. Those expenses were probably well into the hundreds of thousands of dollars before the trial even started. Yes, the ACLU and Americans United split what was leftover, likely a few hundred thousand dollars, but also bear in mind how much of their own expenses they had into it. The article that Larry linked to also says, for example, that Richard Katzkee, the AU's legal director, had 1000 hours into the case. At a standard $150 per billable hour, that's $150,000 right there, and Vic Walczak of the ACLU probably had about the same into it. So as I said, they're not getting rich off this stuff. What legal fees they get reimbursed barely cover the actual expenses they have into the case, and anything left over in a case like this has to go to cover the expenses in numerous cases that they don't get reimbursed for, either because they lost or because the case was settled without any reimbursement relatively early in the proceedings. All of this rhetoric from the right about the ACLU being "funded with taxpayer money" is one giant red herring.

Dave then responds to Larry's comment with his predictable and continued cluelessness:

You're missing the whole point. If legal fees are considered "damages" then an otherwise equitable claim becomes a legal claim. The 7th amendment is crystal clear that when there's a monetary damage claim (above a certain amount which admittedly needs to be adjusted for 200+ years of inflation) the case is a case at common law with a right to a trial by jury.

But this is nonsense on mutliple levels. First of all, the text of the 7th amendment does not say that if there is more than $20 in damages, the case automatically becomes a suit at common law. It says, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...". There are two criteria that must be met to have a right to a jury trial - it must be a suit at common law, and the damages asked for have to be more than $20. Having more than $20 in damages does not transform it into a suit at common law. Where the demand is for injunctive or declaratory relief, it remains a suit of equity even if there are damages asked for greater than $20.

And you have to laugh at his argument that if you consider legal fees to be punitive damages, that would change everything. Well, yes. And if we called it a peanut butter sandwich, it would change everything too. Reimbursement of legal fees does not magically transform into punitive damages just because Dave wants to call them that. Punitive damages are entirely different from legal fee reimbursements, and they are given for entirely different reasons. The law allows reimbursement of legal fees in cases against the government for the entirely obvious reason that a citizen should not have to be rich, or go into debt, to stop their government from acting unconstitutionally. If they win such a case and show that the government is doing so, they should not have to go broke to do it. That has nothing to do with punitive damages.

The Dave and Larry show - coming to a stage near you. I wonder if Larry will also play multiple characters - me, his brother, anyone else he feels lke impersonating these days. That would make for quite a funny show as he comes out first as himself, then as his brother, then he comes out and accuses other people of being his brother, and so forth. Needless to say, this play would be a farce, as is their collective understanding of these legal issues.

stcynic Sun, 07/02/2006 - 05:43

Tags

Dover Case

In a way the peers of the US government would be other governments. Maybe Dave wants constitutional cases tried by the UN?

They could call it The Oliver WendellScot and Felix Fafarman Show. No disrespect intended to Holmes and Frankfurter.

Just as amusing as all of the above is the fact that at least one commenter over there thinks these two are real legal experts. Priceless.

Dan wrote:
Just as amusing as all of the above is the fact that at least one commenter over there thinks these two are real legal experts. Priceless.

In her defense, she is still a bit wet behind the ears. I checked out her blog and the profile says she is 17. The newest post reads:

On Picking Up Guys @ Starbuck's

Don't bother.

Apparently a brain is a turn off. I AM SO MAD. There's this guy in the SB and he's cute and we start talking. And so he's all like "what are you doin' tomorrow?". So I told him I might go to church and then the library or the bookstore. And he says "Library????? Bookstore???? What? Are you a braniac or something?"

Yeah, he's spending Sunday alone.

And he can go Shake his own Speare, too.

HAHAHAHA I kill me.

idiot.

Let's just say that Janie's critical faculties are not fully developed.

Let's just say that Janie's critical faculties are not fully developed.

But they're getting there. They're getting there.

Well Ed, apparently Tim Sandefur agrees with DaveScot on the latter's interpretation of the law, 100%.

If you believe DaveScot.

When will you learn that DaveScot cannot be wrong? Ever.

I wonder if the Thomas More Law Center knew that it wasn't a trial by jury, seeing as how they called Barbara Forrest a "card carrying ACLU member".

And as for Larry, on Jason's blog he says he's really mad at those Darwinists for stifling genuine criticism, and so he's developing an interest there too, with predictably hilarious arguments.

The post that Dave S refers to is, quite literally, incoherent. I can't see how DaveScot gets that Sandefur agrees with him. Or how what Ed said is substantively different from what Sandefur said. Maybe Ed has the patience to try to untangle DaveScot's incomprehensible reasoning; I certainly don't.

Well Ed, apparently [url=http://www.uncommondescent.com/index.php/archives/1284#more-1284]Tim Sandefur agrees with DaveScot[/url] on the latter's interpretation of the law, 100%.

No he doesn't. Tim Sandefur and Ed Brayton both have it exactly right (except that Ed keeps saying "punitive damages" where he means to say "damages" or "monetary damages.")

An award of attorneys' fees is separate, and is not part of the jury verdict in any case. The jury decides the factual issues before it. After the jury renders its verdict, the prevailing party may (in some cases) move to recover its attorneys' fees in a post-trial motion heard only by the judge -- not the jury.

So even the plaintiffs in Dover had sought monetary damages rather than injunctive relief, and even if the Dover case had therefore been a jury trial, the jury would still have had nothing to do with the attorneys' fees portion of it.

In any event, recoverable attorneys' fees are not damages. Most tort causes of action include damages as one element -- but an allegation of attorneys' fees would never count. They are separate from the underlying action, and are therefore dealt with in a separate (post-trial) motion.

When will you learn that DaveScot cannot be wrong? Ever.

It's DaveScot's world. We just live in it.

Judge Jones on his Critics

stcynic — Fri, 30 Jun 2006 10:57:43 +0000

Judge Jones on his Critics

A new article in the York Daily Record about Judge Jones and how he's handled the aftermath of the Dover decision (okay, it's a few days old, but I just found out about it from Burt Humburg, and yes I've informed him that he really should be more on the ball and get me this information sooner). I particularly liked two quotes. The first:

On Thursday night's "Smart Talk," however, Jones characterized his judicial decisions as circumscribed by narrow parameters based on precedent and the law. And if that brings criticism from the "punditry," Jones said, it just goes with the job.

"They would have you believe that we take a look at our benefactors politically, or we take a look at our party affiliation," he said. "That's simply not the way judges work."

But in fact, they not only believed that judges do that, they were openly rooting for this particular judge to do that. When Jones was announced as the judge, the ID side practically threw a party. How could it be better? They got a conservative Christian judge, appointed by Bush and beholden for his judicial career to Tom Ridge and Rick Santorum. They not only expected him to vote based on their benefactors and party affiliation, they rooted for him to do so. Let's roll the tape and stop on.....DaveScot:

Judge John E. Jones on the other hand is a good old boy brought up through the conservative ranks. He was state attorney for D.A.R.E, an Assistant Scout Master with extensively involved with local and national Boy Scouts of America, political buddy of Governor Tom Ridge (who in turn is deep in George W. Bush's circle of power), and finally was appointed by GW hisself. Senator Rick Santorum is a Pennsylvanian in the same circles (author of the "Santorum Language" that encourages schools to teach the controversy) and last but far from least, George W. Bush hisself drove a stake in the ground saying teach the controversy. Unless Judge Jones wants to cut his career off at the knees he isn't going to rule against the wishes of his political allies.

Davey boy wanted Jones to ignore the legal and factual issues and vote solely on his allegiance to Santorum and Bush, and when he didn't get that kind of corrupt decision, he promptly accused him of making a corrupt decision! What makes this even funnier is that we're always hearing from conservatives about how "outcomes based" anything is bad - outcomes based education, outcomes based judging, and so forth. But it's patently obvious that they rest their entire judgement on outcomes.

If they don't like the outcome of a case, then the plaintiffs shouldn't have their legal fees paid by the government; if they do like the outcome, then of course their legal fees should be paid by the government. If they don't like the outcome of a case where the courts overturn a legislative statute, then by god it was those damned "activist judges" out to "undermine the will of the people"; when they do like the outcome of such a case - hey, who said anything about the will of the people? It's all quite amusing to watch.

One of Jones' most ridiculous critics, of course, is Ann Coulter. Here's what Judge Jones had to say about her:

"We have to suffer these arrows because people will disagree with our opinions ... She foments a kind of civic stupidity in my opinion."

Does she ever.

stcynic Fri, 06/30/2006 - 06:57

Tags

Dover Case

Judge Jones reaction to his benefactors criticisms create a possibility of an ideological change by Judge Jones. Ann Coulter calling for poisoning a judge("just a joke" she says) then Judge Jones receiving death threats. I've said this before, the religious right is evil, very EVIL.

I think Jones would have had a really tough time finding for the defendants even if his allegiances inclined him toward such a decision and he was not a fair judge.

As far as I can tell (OK, this is biased) the plaintiffs just came off as better prepared, more professional, and more respectful of the court. The defendants came in with a clown show. I don't know if they just thought a Republican-appointed judge would have to find in their favor or what, but their testimony--Behe's for instance--was laughable, and the plaintiffs just did a bang up job predicting precisely the kind of spurious arguments the defendants would trot out and demonstrating beyond and reasonable doubt that ID is repackaged creationism.

Even a corrupt, activist job (and Jones is neither) might still have a modicum of self-respect. The defendants did not leave Jones any opportunity to decide in their favor and maintain a shred of professional credibility.

Paul-

There is no question that the TMLC was vastly overmatched in terms of legal talent in this case. This wasn't Ali-Frazier, it was Ali-Quarry, an old-fashioned beatdown. Marcia Clark and Chris Darden probably feel a lot better now knowing that they didn't endure the worst butt-kicking in judicial history.

Maybe DaveScot would have preferred a judge like Donald Thompson of Oklahoma, who could have made a bigger case out of it.

A bit of inside baseball, perhaps: DaveScot said describing Judge Jones

. . . an Assistant Scout Master with extensively involved with local and national Boy Scouts of America. . .

First, the Scouts use the single word "scoutmaster," so we know that DaveScot himself is no Scout. I have a hypothesis that the ID ranks are not filled with farmers, or animal breeders/livestock raisers, nor even gardeners and bakers, because they demonstrate such a complete lack of practical knowledge of the real world of biology. Boy Scouts who have been through the entire conservation series of merit badges tend to know too much to be creationist (this isn't a perfect correlation, but chart it when you can and see). But I also hypothesize that the ranks of IDists are NOT filled with Boy Scouts. Oh, there may be a few, but not a lot. Kids who were Scouts tend to grow up to be men who, when confronted with massive dishonesty such as one sees in creationist tracts and schoolboard testimony of DI folk, revolt and pull away. Scouts and Scout leaders swear, repeatedly, to a high ethical code that calls for the person to do one's best for one's country, to be trustworthy, helpful, brave, clean and reverent, among other things.

Thus, when the chips are down, these people tend to do the right thing by the law, by the nation, and they consider it a duty to their fellow humans and to God to do the right thing, not the purely political loyalty thing.

Now, second, DaveScot may have assumed, in his lack of knowledge of the Scouts, that the national council having been tilted to the right in the last decade or so, Scouts would follow a political agenda. This is another case of just not paying attention to the facts. Scouts and Scout leaders at the local level -- and Judge Jones is involved at the local level, despite DaveScot's claim -- get the values of the program left over from its founding in America. Those values include the stuff that made Eagle Scout Bill Bradley refuse to set up tax shelters to keep his income from the federal government when he first signed with the Knicks (the story is he asked why anybody would want to refuse to pay their fair share of taxes to the greatest nation ever), the stuff that got Apollo 13 through its travails with Eagle Scout Jim Lovell in command, and the stuff that made Eagle Scout Richard Lugar tell Ronald Reagan that Reagan's old friend Ferdinand Marcos was a corrupt despot and did not deserve the defense of the military of the United States, contrary to the stories of everyone else in power at the time, prompting the establishment of democracy in the Philippines.

In short, DS hadn't done his homework (where have we seen that syndrome before?) and he didn't expect that someone with Scouting influence would do the right thing, as all Scouts pledge to do. DS seriously "misunderestimated" the power and effect of high ethics.

For all the lawyer jokes, justice administration in this nation is done by people who are supposed to be held to higher ethical standards than the public at large, and who often demonstrate such higher ethics. We can be grateful for such people, and we should encourage institutions that create and nurture them, such as good public schools, and good Girl Scout and Boy Scout units.

This was Dave's immediate reaction when the Dover decision was announced:

Judge Jone's [sic] career just ended. He was appointed by President Bush and just now ruled against the president's wishes. It's a good thing he's got a lifetime appointment because that's the last appointment he'll ever get.

Comment by DaveScot -- December 20, 2005 @ 11:28 am

"Checks and balances" is obviously a foreign concept to Dave. I guess it's no surprise that he learned no more in civics class than he did in biology.

Judge Jone's [sic] career just ended. He was appointed by President Bush and just now ruled against the president's wishes. It's a good thing he's got a lifetime appointment because that's the last appointment he'll ever get.

Comment by DaveScot -- December 20, 2005 @ 11:28 am

Um, since Judge Jones has a lifetime appointment, how can his career have "just ended"? Apparently the nutters like DaveScot don't read what they wrote.

And it is precisely so that judges would not be beholden to their benefactors from the political branches that they were given lifetime tenure.

I guess it was beyond DaveScot's knowledge to realize that the Dover school board could have appealed. They would not have succeeded on appeal, of course, but they could have.

More DI Distortions about Judge Jones

stcynic — Fri, 09 Jun 2006 12:14:57 +0000

More DI Distortions about Judge Jones

You've gotta hand it to the DI Media Complaints Division - when their PR team gives them a catchphrase-laden response to something, they repeat it so many times that they begin to sound like Rain Man (just replace Judge Wapner with Judge Jones). Rob Crowther continues to beat this drum in yet another post calling him an "activist judge" and taking him to task for making a few speeches since the Dover ruling. And of course, he has to distort what he said in order to make his argument:

Judge Jones knew full well that the eyes of the world were upon him during the Dover case, and so chose that moment to deliver a "civics lesson."

Jones said he had no agenda regarding intelligent design but, rather, was taking advantage of the worldwide interest in the case to talk about constitutional issues important to him.

"I've found a message that resonates," he said. "It's a bit of a civics lesson, but it's a point that needs to be made: that judges don't act according to bias or political agenda."

Crowther completely misreads Jones' statement. He didn't take the moment of the Dover ruling to deliver a civics lesson; he was just doing his job in that ruling. It's the aftermath of the ruling, and the simplistic responses to it, that afford the opportunity to deliver a civics lesson. In his speech to the ADL, he used the criticisms of Phyllis Schlaffly as a jumping off point to deliver that lesson; he could easily have used many of the criticisms coming from Crowther and his compatriots as well.

Previously the Judge commented that his liberal arts education "provided me with the best ability to handle the rather monumental task of deciding the Dover case."Monumental? Did anyone tell him that legally the case only deals with the middle district of Pennsylvania? What's monumental is the Judge's hubris, which isn't helped by a fawning media.

The case was monumental in importance, regardless of where it technically applies. Like the McLean ruling, also only a district court decision, Kitzmiller has already proven very important in other states. It led, much to the DI's chagrin, to the Ohio Board of Education pulling the "critical analysis" lesson (the governor of Ohio asked the board to revisit the issue in light of the Dover ruling, despite the fact that it was not technically a binding precedent in Ohio). It is having an enormous influence in debates about ID around the nation, and the DI knows it damn well (and is quite unhappy about it).

If the ruling had gone the other way, do you suppose the DI would be criticizing someone for calling it monumental? Hell no. They'd be screaming from every mountaintop about the unrivaled importance of the ruling. And the only reason they're trying to downplay that importance now is because they lost the case. And that's what their PR firm told them to say. Do you suppose if the decision had gone the other way and Jones had given a few commencement speeches talking about the case that the DI would be whining about his "hubris"? The odds of that are well below Dembski's universal probability boundary.

All of this for a Judge who didn't listen to the evidence provided to him (as recounted in detail in "Traipsing Into Evolution: Intelligent Design and the Kitzmiller vs. Dover Decision"), revised history, and was an activist judge. He anticipated that he'd be called an activist in his ruling, because he knew full well that he was acting as such when he wrote the decision.

Or maybe he knew that you and your simpleminded fellow travelers react to every court decision you don't like by repeating "activist judges" over and over again like mindless automatons. I'm sure you're an excellent driver, and I agree that the "Who's on First" routine is very funny, but no matter how many times you repeat "Judge Jones sucks", it isn't going to become true. You were thrilled when he was given the case because he's a conservative Republican and you were sure that gave you the advantage. The fact that you still couldn't make a winning case even with that headstart just tears you up, I know, but it's time to stop whining about it and accept reality.

stcynic Fri, 06/09/2006 - 08:14

Tags

Dover Case

Wonder what the Dover ruling did for their budget?

Steve,

Not much good. Worse still for their budget would be an open rejection of special creation [a.k.a. "poof"] and a young earth as this would dry up the Evangelical base that provides nearly all of their support.

Their "big tent" is quite comfortable for all its diversity--quite comfortable on their budget as well.

God that place makes me sick.

Maybe when Crowther gets older and studies science in high school he will come to appreciate what Judge Jones has been saying. But now, he's acting like a puerile twit who thinks if he keeps saying "Is not!--is not!--is not!..." often and loudly enough, the world may come around to suit him.

Did anyone tell him that legally the case only deals with the middle district of Pennsylvania?

Um, if it wasn't monumental, how come the guys at the Discovery Institute came out with an entire book trying to refute the decision within a couple of months of it being handed down?

Is delusion setting in out in Seattle or just dissembling?

"... but it's time to stop whining about it and accept reality."

Dream on -- the problem with those guys is precisely that they can't accept reality!

All of this for a Judge who didn't listen to the evidence provided to him (as recounted in detail in "Traipsing Into Evolution: Intelligent Design and the Kitzmiller vs. Dover Decision"), revised history, and was an activist judge.

Am I the only one who got the impression that they wrote this paragraph by going through a list of right-wing talking points and checking them off one at a time?

They also seem to have forgotten that the creationists on the school board were voted out at the first opportunity the public had to express their opinion.

So if being an activist judge means subverting the will of the majority, then wouldn't the ruling actually have to be in opposition to majority opinion?

A small point, but it strikes me that Judge Jones was describing the task of hearing the case (with its mountains of expert testimony and technical material) as monumental, not the decision itself. I think the judge intended a more modest comment than the willful mis-reading of Mr. Crowther would indicate.

Prediction: Next Attack on Judge Jones

stcynic — Tue, 06 Jun 2006 13:58:11 +0000

Prediction: Next Attack on Judge Jones

Okay folks, I'm going to make a prediction here on the substance of the next attack on Judge Jones. In an article in the Philadelphia Inquirer about Jones' recent speeches defending judicial independence, we find this little tidbit:

Edward Madeira, a senior partner with Pepper Hamilton L.L.P., which represented Dover plaintiffs, described Jones as the perfect ambassador for a more visible judiciary.

"God bless him," said Madeira, who serves with Jones on a state panel on judicial independence. "He came out of the case with a real concern about the lack of understanding of the role of the judiciary and has become a person who spends time very effectively talking about it."

I predict that this will be used for the next wave of attacks on Jones from his shrill and often absurd opponents (Phyllis Schlaffly, Casey Luskin, Jonathan Witt, Michael Francisco, Seth Cooper, Joe Manzari, and others). They're going to scream about the alleged conflict of interest because Jones serves on a judicial independence panel with a partner in the law firm that represented the plaintiffs in Dover. It's an absurd argument, of course, but absurdity never slows down this crowd in the slightest.

stcynic Tue, 06/06/2006 - 09:58

Tags

Dover Case

Madeira is absolutely right--so many Americans, including the most shrill wingnuts, seem not to understand the role of the judiciary in the United States. They would probably be happy to see the Supreme Court made part of the President's cabinet.

Judge Jones on Judicial Independence

stcynic — Tue, 06 Jun 2006 10:56:15 +0000

Judge Jones on Judicial Independence

The more I see from Judge John Jones, the man who presided over the Dover trial, the more I like him. He recently gave a speech to the ADL and they've put the transcript of that speech on their webpage. I urge you all to read it. He doesn't get into the specifics of defending his ruling, which judges generally avoid doing, but he does make a strong and more general argument about precedent and the job of a district judge that is aimed squarely at the critics of his decision. Those critics are so driven by their anger at not getting the outcome they wanted that they have blinded themselves to one of the fundamental aspects of how Federal courts operate. Below the fold I'll paste a long excerpt from the speech that explains this in more detail.

Accordingly, and in that vein, I found it notable that among those who disagreed with my decision was one Phyllis Schlafly. I'm sure that you know who Ms. Schlafly is and I'll not try to characterize her beyond saying she is a conservative columnist and pundit. I don't know Ms. Schlafly and I assume based on her rÃ©sumÃ© that she's a fine person. However, under the banner "Judge's unintelligent rant against design," Ms. Schlafly authored a January 2006 column and within her column she noted that, and I'm quoting here, that I "owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002" and that I, I'm still quoting here, "stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District." Other than that, she really liked my decision. (Not really.)
Kidding aside, Ms. Schlafly obviously enjoys the same First Amendment right of free speech that we all do as citizens of the United States, and she's entirely free to disagree, as she most pointedly did, in my conclusions. Hers is a point of view as it involves the establishment clause and establishment clause cases that many people share.

But the way that she conducted her analysis is instructive, and points out a problem which is pervasive and therefore threatens to, I think, tear at the fabric of our system of justice in the United States. Ms. Schlafly's column makes it clear that she views me as an activist judge of the very worst kind. Yet in her column and within other criticisms directed at my opinion, time and again writers would omit to note the role legal precedents play as they relates how judges decide cases that come before them. That is, as a trial judge, I must follow the law as previously established by the higher courts and in particular by the Supreme Court of the United States.

The premise of Ms. Schlafly and some others seems to be that judges can and should act in a partisan matter rather than strictly adhering to the rule of law. Now, to those who believe that judges must cast aside precedents and rule as according to an agenda, let me say that I believe that the public's dependence upon the impartiality and the integrity of judges is absolutely essential to its confidence in our system of justice. It is especially important for our citizens to understand that judges must be impartial and that the independence of the judiciary is premised on a judge's pledge of freedom from partisan influences.

In the context of the Dover case, there exists over a half century of strong legal precedents which have emanated from the Supreme Court and the intermediate appellate courts. Among other things, this history verifies and validates not only the separation of church and state, but also guides us as judges with respect to the test that we must apply to the factual circumstances as we find them.

Applied correctly, these tests direct us in our determination of whether an act by a governmental entity, in this case the School Board, is violative of the establishment clause. Now, I won't bore you with the case names or details, but suffice it to say that judges are constrained by their responsibility to interpret precedents that constitute the settled law of the United States.

That is precisely the task that I undertook in deciding the Dover case. Reasonable people may disagree whether I correctly applied those cases and precedents. However, I did not have the power - and Ms. Schlafly and others fail to mention this - I did not have the power to omit utilizing those tests, nor did I have the ability to invent tests other than those recognized by existing jurisprudence against which to measure the facts of the case.

Manifestly, I did what I believe all good judges must do, which is to approach the case without a political agenda or a bias or a predisposition or a thought that if a case is decided in a certain way, it will offend a political benefactor.

It's always risky business to divine what the founding fathers might think about current developments, but I'm certain, I'm entirely certain, that by deciding the Dover case the way that I did, I performed my duties as a district judge in exactly the way that the founding fathers had in mind when they created the Federal Judiciary in Article III of the Constitution.

In fact, I will submit to you that had I decided the Dover matter in a different way, I would have then engaged in just the kind of judicial activism which critics decry. That is, to have ruled in favor of the School Board in this case based on the facts that I had before me at the conclusion of the trial, I would have had to have overlooked precedents entirely and thus impressed upon the facts of the case my sense or the sense of the public concerning what the law should be, and not what it is.

This is ad hoc justice based upon either my preferences or biases or the perceived will of the majority. Taken to its extreme, it is anarchy at any level that to rule in such a fashion represents the true work of an activist judge. And so the real criticism of my decision, and this is one which I will readily accept, is that I did not render an activist decision.

Now, I'm not the only one to suffer this type of criticism as a federal judge. Last year my colleague on the federal bench, a person who I know, Judge James Whitamore, faced a similar situation in the Terri Schiavo case. Judge Whitamore rendered a decision which I believe closely adhered to the law and precedents, only to be excoriated during the subsequent public maelstrom which attended that emotional situation. He was also denounced as an activist judge, out of touch. Some even called for his resignation.

Polls show that many Americans believe that it is acceptable to teach creationism in public schools. And early last year polls found that a great many Americans thought that Terri Schiavo should be kept alive. But I submit to you that as citizens, we do not want and in fact we cannot possibly have a judiciary which operates according to the polls, or one which rules based on who appointed us or according to the popular will of the country at any given moment in time. And this is no small matter as it relates to how our fellow citizens view the judiciary.

Back in Pennsylvania, I'm a member of a Commission on Judicial Independence as appointed by the Chief Justice of our state's Supreme Court. Our Commission defines judicial independence in this way: A fundamental cornerstone of our justice system, and in fact of our federal and state government, is an independent judiciary. The concept requires judges to decide cases in front of them in a manner faithful to the law without fear or favor and free from political and external pressures. It is vital, in my opinion, that we promote judicial independence at every level of the judiciary. Do not misunderstand what I mean by that. Many people, when they hear the term "judicial independence," think of an unfettered judiciary which is responsible to no person or entity - one which features judges deciding cases by doing what they please, free of any accountability. This is not what we, as judges, seek. This is not what we should seek. We are accountable. We should be criticized. Our decisions should be scrutinized and where inappropriate or wrong, they must be appealed and reversed.

However, we must not, I believe, "dumb down" the public by implying that judges should decide cases based on an agenda, or that they have a responsibility to act in concert with prevailing public opinion or the will of the majority. Worse than that, the press and the public have a responsibility, in my view, that is being shirked. That is to really foster a better understanding of the role of precedent in what judges do.

To be blunt, I think that many people need a civics lesson about the judicial system, because we are beginning to cross the line between fair comment and criticism of judges' work into something which is much darker and debilitating. At its worst, the failure by some segments of the media and the public to understand the proper function of an independent judiciary leads to results which are not only frightening, but are at times tragic. All of you remember the murders of my colleague Judge Joan Lefkow's husband and mother last February, shot by a disgruntled litigant whose case had been dismissed by the judge. The killer was lying in wait for Judge Lefkow and when he discovered her loved ones first, he killed them instead.

We cannot know if, in fact, the killer of Judge Lefkow's family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was. As a result, as a direct result of the Lefkow murders, Congress has appropriated funds for security systems for the homes of United States judges. That is a very sad statement about our times.

And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore's in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country. I'm sure you'll agree that that's a sad state of affairs and an alarming state of affairs.

By doing this, and by allowing this to happen, we are discouraging good people from seeking careers on the bench. In some cases, we're losing judges who simply don't want to undertake that responsibility in the face of these threats.

Now, as I conclude, let me return to the role of the Rule of Law, which is I think so fundamental and so embedded in our system of justice. We must never forget that the Rule of Law is not a conservative or a liberal value. It is assuredly not a Republican or Democratic value. Rather, it is an American value. Confidence in the Rule of Law rests entirely at any given point in time on the character and the integrity of the individual American judge and on that judge's absolute commitment to fairness and impartiality.

Hear, hear.

stcynic Tue, 06/06/2006 - 06:56

Tags

Dover Case

H.E.R.O.

look up the definition: it should be amended to include this man's picture.

That has to be one of the best things I've ever read! Kudos to that judge!

Judge Jones was overly kind to Phyllis Schlafly. She is not merely a "conservative columnist and pundit;" she is an attorney by training (JD from Washington University in St Louis) and ought to know very well every point he makes here. Her abject dishonesty in service of her political agenda allow in me no alternative but to hold her in utter contempt.

Great speech. If Bush doesn't promote this guy to the federal bench, then perhaps the next Democratic president should consider doing so. A Scalia or Thomas he is not.

Zowee! An eloquent and very pointed putdown of Schlafly, et al. I believe former Justice O'Connor has made similar remarks, but not in as much detail as Jones.

Regarding Schlafly, while she was in her anti-ERA mode, campaigning all over creation, she left her children at home with a nanny. (I have this info from her daughter, BTW, with whom I attended college.) Phyllis apparently had no trouble reconciling her privileged ability to roam the US with school-age children at home while publicly decrying an amendment that would enable ALL women equal access to jobs, etc., and allow them some time away from the kids + house. Pure hypocrisy.

I wish I could take the entire religious right and give them an intensive civics lesson on the Constitutional separation of powers. For a group of people so obviously in love with the "American Way," their understanding of it is appalling. I would include W. in that class, since he apparently failed the last quiz on executive power.

Damn, maybe we can get Judge Jones to run for President! I don't care which party either.

Cheers.