Dissecting a Judicial Idol: Judge Jones

An article in 'The York Dispatch' entitled, Behind the bench with the intelligent design judge, one year later, contains some comments worth dissecting. All quotes are italicized. My comments are in bold print.

"Last week, the Discovery Institute, an organization that supports the teaching of intelligent design, accused Jones of copying much of the text of one section of his ruling from the American Civil Liberties Union.

ACLU attorneys stepped to Jones' defense, saying it is common practice for judges to use portions of proposed findings of fact in their rulings."

No wonder the ACLU came to his defense. Jones' ruling was copied to a great extent from the plaintiffs' proposed finding of facts. Up to 90 percent of the section of his ruling, asserting intelligent design not to be science, was copied nearly verbatim according John G. West of the Discovery Institute.

In addition there is evidence that copying may be habitual for Judge Jones. The following can be found at this site:

Judge Jones' Commencement Address at Dickinson College (2006):

"...our Founding Fathers... possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason... The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry... this core set of beliefs led the Founders... to secure their idea of religious freedom by barring any alliance between church and state." (http://www.dickinson.edu/commencement/2006/address.html)

Compare that to Frank Lambert's, The Founding Fathers and the Place of Religion in America (Princeton University Press, 2003):

"The Founding Fathers... had great confidence in the individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason. To them, true religion was not something handed down by a church or contained in the Bible but rather was to be found through free rational inquiry...the framers sought to secure their idea of religious freedom by barring any alliance between church and state."

(Frank Lambert, The Founding Fathers and the Place of Religion in
America, pg. 3 (2003). You can also find this material online at http://press.princeton.edu/chapters/i7500.html)

(Back to the York Dispatch article)
("He" is the following quote refers to Judge Jones)
"He said he didn't have any pre-conceived ideas about science and religion going into the case, which "established in my mind that judges can appropriately handle complex scientific issues given the testimony from appropriate experts such as we had ... in this particular case."

But that's not what is indicated by Judge Jones' actions. He has written inaccurate depictions of testimony provided in his own courtroom. However, the inaccuracies are consistent with allegations made by ACLU attorneys. It is easy to make such errors when you have a fixed mindset and blindly copy from that which reinforces that mindset. For example, Jones falsely characterized the testimony of witness Michael Behe. Behe, according to Jones, when referencing specific articles alledged to explain the evolution of the immune system, said these articles were "not good enough." Behe's actual testimony was "it's not that they aren't good enough. It's simply that they are addressed to a different subject."

Jones falsely wrote that there were not any peer reviewed publications by IDers despite evidence to the contrary. He also falsely depicted the testimony of the defendant's expert witnesses in claiming they acknowledged that "ID posits that animals...were created abruptly by a...supernatural designer. When witness Scott Minnich, a biochemist, was asked "whether intelligent design requires the action of a supernatural creator" his response was "It does not."

In addition Judge Jones gave every indication that he fails to understand either the distinction between evolution and abiogenesis or he inaccurately assumes that the level of scientific evidence for abiogenesis is on a par with evidence produced for evolution. On second thought, perhaps Jones misunderstands the significance of the disparity of evidence. Since intelligent design encompasses both abiogenesis and evolution, Jones should have been able to comprehend the particularly weak scientific case for the former and drawn a logical inference with respect to a design alternative. But alas, he seems dependent on the minds of others for his arguments and if others fail to address issues, Jones has nowhere to turn but to the facts about which he is woefully unfamiliar.

"His calendar is booked with speaking engagements though the middle of 2007, mainly from people asking him to speak about judicial independence."

Judge Jones is constantly speaking before different audiences. I have a concern about judges who earn large amounts of money through activity that is not part of their judicial duties. If the speaking engagements are unpaid efforts then this would not apply to Judge Jones but that would be a naive assumption would it not? A related concern is the obvious fact that income is tied in with a particular decision. It encourages rulings that attract attention. But wasn't attention inevitable as a result of this case? Perhaps, but the type of attention drawn by Jones is, in no small part, due to his judicial activism with respect to this case. John West wrote this:

Dover in Review, Part 1: Is Judge Jones an activist
judge?

Over the next week or so, I plan to file several posts
analyzing issues relating to Judge Jones' decision in
the Dover case. I start today by revisiting the
question of whether Judge Jones is an "activist"
judge. Some Darwinists are livid that I've applied
this label to the Judge. Although I've explained my
reasons for regarding Jones as an activist in detail
to many reporters, my full views haven't really been
reported. So I thought I would explain them here.

I regard Judge Jones as an activist in this case not
because I disagree with the outcome of his decision
(although I do), but because I disagree with the
injudicious and overreaching manner in which he framed
his decision.

It is a standard principle in good constitutional
jurisprudence that a judge should only go as far as
necessary to answer the issue before him. So if a
judge can decide a case on narrow grounds, that's what
he ought to do. He shouldn't try to to use his opinion
to answer all possible questions. In the present case,
Judge Jones found that the Dover board did not act for
a legitimate secular purpose. Instead, he determined
that board members acted for clearly religious
reasons. Having made this determination, the specific
policy adopted by the Dover board was plainly
unconstitutional under existing Supreme Court
precedents. End of story. There was no need for the
Judge to launch an expansive discussion of whether
intelligent design is science, whether there is
scientific evidence for the concept, whether it is
inherently religious, whether Darwinism has flaws, or
whether Darwinian evolution is compatible with faith.
A judge who actually adheres to the idea of judicial
restraint would not have ventured into these other
areas, because they were completely unnecessary for
the disposition of the case.

Why, then, did Judge Jones venture so far afield from
what was necessary to determine the case? From the
comments he made to the news media, it seems that he
wanted his place in judicial history. He relished the
idea that he could be the first judge to give a
definitive pronouncement on ID, and he didn't want to
let go of that opportunity just because good judicial
craftsmanship wouldn't allow it. Judge Jones also had
no small estimate of his own importance in the scheme
of things. Take the following remarkable passage from
his opinion:


the Court is confident that no other tribunal in the
United States is in a better position than are we to
traipse into this controversial area. Finally, we will
offer our conclusion on whether ID is science not just
because it is essential to our holding that an
Establishment Clause violation has occurred in this
case, but also in the hope that it may prevent the
obvious waste of judicial and other resources which
would be occasioned by a subsequent trial involving
the precise question which is before us. [p. 63]
(emphasis added)
This passage exhibits the height of presumption, and
it's why in my initial statement after the trial I
referred to Judge Jones as having "delusions of
grandeur." First, and contrary to the Judge's claim, a
determination of whether ID is science was plainly NOT
essential to the disposition of the case, as pointed
out above. Even more troubling, however, is the
Judge's suggestion that he wanted to determine whether
ID is science so that no other judge need investigate
the facts for himself. Judge Jones is a federal
district court judge in one particular district court
in Pennsylvania. But he's speaking as if he is more
powerful than a majority on the United States Supreme
Court! He is staking out the claim to have the right
and duty to decide the question of whether intelligent
design is science for all other judges in the entire
United States in the future. Lower federal court
judges are bound by Supreme Court precedents, but they
certainly aren't bound by the rulings of other lower
court judges at the same level. Although other federal
judges certainly can refer to Judge Jones' decision
(especially to his legal reasoning), every judge has a
duty to reach an impartial and independent
determination of the facts and law in the cases before
him. Another federal district court judge can't simply
say, "Well, Judge Jones has already decided the
matter, so there is no need for me to do anything in
this case before me." Nor can the judge tell the
parties to a new case: "I've decided not to allow you
to present any evidence, because Judge Jones already
heard the evidence three years ago." Judge Jones, no
matter what he thinks, is not the entire federal
judiciary. Nor does he have the right to speak for the
entire federal judiciary.

Another thing: Judges who truly believe in judicial
restraint are careful not to try to use judicial power
to decide divisive cultural controversies unless it is
legally necessary to do so. In this case, as pointed
out previously, Judge Jones had narrow grounds on
which to base his decision. But he chose not to do so
because he wanted to issue a definitive ruling on the
disputed questions of whether intelligent design is
science and whether it could ever be taught
constitutionally in science classes. He wanted to
decide the larger public controversy for all future
legislators, school boards, and judges. That is
judicial activism with a vengeance. It's the same type
of activism that led the federal courts to try to
decide the issue of slavery before the Civil War by
judicial fiat in the case of Dred Scott. And it's the
same type of judicial activism that led the federal
courts to inject themselves into a host of social
conflicts (such as abortion) during the past few
decades. Far from resolving controversial issues, such
activism betrays the democratic process and often
leads to further polarization. By giving everyone a
stake in the discussion, the democratic process tends
to promote incremental solutions and compromise, which
cools tensions over the long term. That's why judges
who believe in judicial restraint are careful not to
intervene on one side of a controversial debate unless
absolutely necessary. It is the hallmark of activism
for a judge to try to impose his view on a controversy
when such a course of action is not absolutely
necessary as a matter of law.

Judicial activism is indeed authoritarian and legislative in nature. Apparently it can also be lucrative.