Behe, Kitzmiller, The Long Endnote, and the Beirut Fertilizer Accident

I’ve written here about the Kitzmiller case on previous occasions, but as I was re-reading Darwin Devolves recently I found myself fascinated by Michael Behe’s long endnote about the case. The book contains a few hundred endnotes, most of which are short citations or quotes of sources. A couple of others extend to around half a page in length. And then there’s Behe’s endnote on Kitzmiller, which goes on for a page and a half of fine print. I think of it as his attempt to mimic George Kennan’s famous “Long Telegram” on US-Soviet relations: The Long Endnote.

The background to this endnote is that the DI had advocated teaching ID Creationism in the schools, and a ragtag band of halfwits on the Dover, PA school board, frothed up on ID and on revisionist constitutional theories about the supposed “myth” of church/state separation, took 'em up on it. While it’s hard to say exactly where the DI’s mood changed, at the beginning it enthusiastically embraced the Kitzmiller litigation, and a number of DI fellows signed on as experts for the school district. After a bizarre confrontation between the DI and the District’s litigation counsel (the Thomas More Law Center – “Burning Protestants for over 500 years!”) most of them committed the dishonorable, but skin-saving, act of abandoning the case and leaving the District in the lurch. Since that time, the DI has been saying that it never did advocate the teaching of ID Creationism in the schools, showing that its honesty about itself is comparable to its honesty about science.

But Behe honored his pledge and he stood up alongside the District, defending its position. His testimony was not so much a dumpster fire as it was a Beirut fertilizer accident. In a spectacular moment which awakened PTSD in every litigator who has ever had an expert collapse on the stand, he acknowledged that to get to ID being science one needed to redefine science, and to redefine it in such a way that astrology would likewise be a science. While people favorable to ID Creationism had speculated that Judge Jones, appointed by a creationist president, would turn out to be a horrible political hack and would rule in the District’s favor, that didn’t happen. Indeed, it’s hard to imagine, after Behe’s performance, how any judge, no matter how dim or crooked, could possibly write a ruling favorable to the District without a deep sense of personal shame, not to mention professional disgrace.

Behe’s endnote on Kitzmiller uses its page and a half principally to attack Judge Jones, and it’s quite strange. Behe starts with a simple falsehood, claiming that “the ACLU” sued the school district – the ACLU didn’t, and would not have had standing. PARENTS sued the District, and some of the aid they received came from the ACLU, but of course when you’re in reactionary culture-war mode, it’s awfully hard to resist naming the ACLU as an adversary. But, on to Jones: Behe can’t resist digging at Jones by suggesting that Jones is some sort of failure and political hack:

And, worse, he suggests that Jones, who does seem to really have worked very hard at getting this one right and at correctly understanding the testimony and its implications, was utterly lost:

And on what does Behe base this contention? He points to an excerpt from the judge’s opinion (note that in this context the word basically means “decision,” rather than something more like a personal point of view) and then presents an “excerpt from a plaintiffs’ lawyers’ document” which contains very similar wording. He then goes on about why someone who gets caught lifting material from someone else is disgraced, and how very wrong it is to commit plagiarism. He comments that:

Let’s look at this agreement between Jones’ opinion and the “plaintiffs’ lawyers’ document,” since it is the core of Behe’s case in The Long Endnote. First, does it strike anyone as odd that Behe doesn’t name that document? Why would he omit to name it? The rest of his endnotes show that he is accustomed to the modes and methods of citation of sources, and these methods differ only in minor details between his profession and that of the law. But there is a very good reason why Behe doesn’t wish to give the document’s name, and that reason becomes evident when one sees what the title of the document is:

Now, whether you’re familiar with the manner in which decisions are rendered after a bench trial in US District Court or not, that title should awaken some recognition that things are not exactly as they’ve been represented by Behe. The very purpose of the document which the judge used as his source was to suggest wording the judge might use in rendering his decision. The parties BOTH filed these things, at the court’s request. It is the ordinary practice of a court rendering a decision after a bench trial to do this.

Behe undoubtedly was hoping that the arm-waving about plagiarism and the failure to identify the document in question would do the trick and that his culture-warrior audience would get its torches lit for the march down to the nearest ACLU office and/or federal courthouse. But just in case someone has actually understood what’s really happening despite the effort to obfuscate, he goes to a backup argument: suggesting that Jones was a bit of a dim bulb who just uncritically echoed the plaintiffs because he had no idea what he was doing:

I suppose Behe thinks that those of us who aren’t DI fellows spend our days reading Jackie Collins novels for intellectual stimulus while drinking ourselves into a stupor. Especially nasty sorts like liquor-store bureaucrats, who are (I guess – we have to trust Behe, who no doubt is an expert on the subject of the intellectual character of “liquor-store bureaucrats,” on this one) known to be the lowest of intellectual dregs. How could a man who carries out liquor regulations for a few years of his life possibly have grasped the essence of Aquinas and Hume? How, indeed, can such a man ever have understood any complex subject at all? As it happens, I was once the author of a monthly column in a trade magazine addressed to Pennsylvania’s liquor industry, and so I suppose that I, too, must belong to that sort of low sub-intellectual class, never to know sublime truth or true beauty, and never to think a sophisticated thought. O, demon gin! How comprehensive are your ravages!

Now, I don’t know John Jones. He wasn’t a judge when I was practicing in Philadelphia, and I didn’t get out to the Middle District of PA all that often anyhow. But one of the lovely things about the federal bench is that there have always been a great many lawyers of high competence who’d like to be on it, and that this assures, so long as Doctor Zaius isn’t President and the Statue of Liberty isn’t lying broken off and half-covered in the sands, that even with a degree of political favoritism in the mix, the overall intellectual quality of a United States District Court is top-notch. Nothing about the thousands of pages of transcript, or the decision, or the subsequent talks he’s given about the importance of an independent judiciary, suggest that Jones is any sort of departure from that standard.

What gives? I think that what gives is that Behe knows what he did. And when you’ve fought for pseudoscience for decades, and given so much of yourself to the cause, it must be an ill feeling to realize that you were also the author of its spectacular collapse under scrutiny. Anyone must be to blame – anyone but Behe. Surely the astrology testimony would be comprehensible to a GREAT mind – the sorts who “get” Thomas Aquinas and Hume! If only the federal courts were not in the hands of mere liquor-store bureaucrats, being herded around like sheep by the wicked and godless ACLU!

But this lovely, intellectually aristocratic vision of Behe’s is not quite square with reality. I am sure I cannot speak for the disciples of Aquinas, but if I believed in ghosts, I would be sure that the spirit of David Hume haunted that courtroom and guided the course of events. All Behe can do is revisit his personal Beirut fertilizer accident, and wish that things had been otherwise. If he had successes in ID Creationism, he could crow about those; but he is, instead, doomed to rail angrily at his failures.

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My understanding it that it is quite common for judges to include those Findings of Fact when writing decisions. We have heard these same sour grapes from Behe and the DI before, the only surprise is that he is still repeating it.

Oh wait, that isn’t really a surprize. Nevermind.

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Yes, enormously common. That’s precisely what they’re submitted for. And typically the judge doesn’t adopt them verbatim – indeed, the one Behe quotes wasn’t adopted verbatim. But they’re very helpful to the court because they help the judge understand what the parties consider to have been the crucial points and how the evidence bears upon the arguments made by the parties. Not that the judge doesn’t have a pretty thorough understanding of those things, but in an adversarial system of justice the dispute of facts and the meaning of those facts is given coherence, direction and purpose by the parties.

As I’ve previously mentioned, there is a Washington State Supreme Court decision which contains a few paragraphs of text almost verbatim from my brief. That’s not “plagiarism.” That’s me having convinced the court that I was right. If the other side had won, the decision might well contain a few paragraphs drawn principally from the other side’s brief, and nobody in my position, if that had happened, would think there was anything odd about that practice. I’d be upset that I had lost the argument, but the very thought of objecting to the court adopting language with which it agreed would never occur to me. But the DI is famous for thinking thoughts which nobody has ever thought before – because those thoughts were not worth thinking.

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It must help sort out issues where both parties agree too, allowing the judge to consider the differences.

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Yes, definitely. People do forget that judges are pretty busy – they have a large docket and they cannot have the three-dimensional understanding of the dispute that the parties have. And so in practice one sometimes finds that judges think something is being disputed when it’s not, or misunderstand the precise contours of a disputed issue. But cases are not “made” by the judges – they are made by the parties. The parties decide what to put in issue and precisely how to put it in issue. A judge is trying to get to the heart of the thing and understand what the principal issues are, why they matter, and how they bear upon the disposition of the case.

Every now and then one sees a case – a friend of mine who used to clerk for a US District Court in Cleveland described a few of these – where the legal representation on both sides is so poor that the court winds up doing the parties’ work. But that’s very rare. At most, the sort of guidance the court might ordinarily provide is a remark at a status conference like “do we have to consider whether the claims are barred by res judicata,” or some such thing – but if the parties don’t identify an issue, the court normally won’t identify it, either.

I once took on a case before a Washington hearings board which had been pending for over two years, with my client and his counsel and the State and its AG all dithering and hemming and hawing and nobody quite wanting to get the thing resolved – very odd. I picked up the file after it had been assigned to me, and discovered that the State had filed its appeal too late and that the case should be dismissed. But had I not noticed that, it would never have come up at all. The hearings board doesn’t ask everybody “was this filed on time?” – rather, the board assumes that if it wasn’t (or arguably wasn’t) someone’s going to make a big fuss about that.

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