Discovery Institute Tries to "Swift-Boat" Judge Jones

by Kevin Padian and Nick Matzke

As predictable as sunup, the Discovery Institute reacted to their drubbing in Federal Court (Kitzmiller v. Dover Area School Board, 20 December 2005) without the least introspection. One would have thought that after six weeks of testimony by both sides in the public debate (there is, of course, no scientific debate) about evolution and intelligent design, both sides would say, "Okay, we gave it our best shot," and at least have the common decency to read the Court’s decision before spinmeistering.

Instead, the DI immediately tried to "swift-boat" the judge.

Before the electrons on the pdf of the judge's decision were even cool, the DI released the following salvo:

The Dover decision is an attempt by an activist federal judge to stop the spread of a scientific idea and even to prevent criticism of Darwinian evolution through government-imposed censorship rather than open debate, and it won't work," said Dr. John West, Associate Director of the Center for Science and Culture at Discovery Institute, the nation's leading think tank researching the scientific theory known as intelligent design.

In the DI's lexicon, "activist" means someone who says or does things you don't like: the ACLU, the NCSE, Americans United, and … oh. A Republican judge from central Pennsylvania.

Of course, the DI folks aren't activists. They just sit in their think-tank, performing first-class research for the best scientific journals, waiting for the awards and accolades from the scientific and educational communities to come in. (So far, they're still waiting for the awards, and we're still waiting for the research.) Apparently it's not "activist" for the Discovery Institute to send their own "Icons of Evolution" video to the Dover Area School Board (a video that DASB member William Buckingham apparently bullied teachers to watch – twice – and was clearly an inspiration to Buckingham in his various efforts to squelch the teaching of evolution in Dover. Apparently it's not "activist" to send DI staff to Dover to counsel the school board on how to promote ID in science classes.

Now, wait. The DI staunchly maintains that it never said that ID should be taught as science. But it should be mentioned in science classrooms, apparently, as a stealth "alternative" to evolution. This is the sneaky approach. Don't bother to establish ID as science in the scientific community; don't bother to tell anyone you're teaching a sectarian religious view; just slide it in on the QT. ID really is, as one observer noted, "the faith that dare not speak its name." That's now a finding of fact in Federal Court.

To Teach ID, or Not to Teach ID?

On the other hand, there is often a difference between what the DI does and what it says it does. Take, for instance, this passage from Intelligent Design in Public School Science Curricula: A Legal Guidebook, by DI associates David K. DeWolf and Mark E. DeForrest, and the Director of the DI's Center for Science and Culture, Stephen C. Meyer: "school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution -- and this includes the use of textbooks such as Of Pandas and People that present evidence for the theory of intelligent design."

Hard to see where you'd fit that in, except in a science class.

It is also worth looking at what the Discovery Institute was telling its donors in 1999, based on the now-infamous "Wedge Strategy" document.

Once our research and writing have had time to mature, and the public prepared for the reception of design theory, we will move toward direct confrontation with the advocates of materialist science through challenge conferences in significant academic settings. We will also pursue possible legal assistance in response to resistance to the integration of design theory into public school science curricula.

And yet, when this event finally occurred – in Dover, Pennsylvania, in 2004, exactly five years after the 1999 Wedge Strategy – the Discovery Institute claimed that they did not support putting ID into science curricula, and furthermore they had never suggested such a thing.

"Activist" Judge John Jones III

Although the DI uses the same public relations firm as the "Swift Boat Veterans" did, they picked the wrong guy to keelhaul. Judge John E. Jones III is a churchgoer, a lifelong Republican, appointed to his Federal position by President George W. Bush. As a New York Times piece recently noted:

His supporters include Senators Arlen Specter and Rick Santorum of Pennsylvania, and his mentor is Tom Ridge, the former governor of Pennsylvania and homeland security secretary.

Arlen Specter, Tom Ridge, and Rick Santorum. Not exactly your typical liberal coalition. Wait a minute! Isn't Santorum the one who tried to introduce Intelligent Design into the "No Child Left Behind" Act? Doesn't the DI pull his strings when it comes to pronouncements on science and education? These are heavy hitters, well connected to the current administration. From the outset, an impartial observer might have expected that Judge Jones would be predisposed toward the Bush-endorsed concept of ID. Let's see what else the Times found out.

But Judge Jones is praised by people on both sides of the aisle as a man of integrity and intellect who takes seriously his charge to be above partisanship. He appears to define himself less by his party affiliation than by his connection to the Pennsylvania coal town where he still lives, and to a family that grabbed education as a rope to climb out of the anthracite mines, and never let go. Clifford A. Rieders, a lawyer in Williamsport who is past president of the Pennsylvania Trial Lawyers Association, said he had found Judge Jones to be "moderate, thoughtful" and "universally well regarded."

"I think that his connections are not so politicized, nor is he so ambitious that he would be influenced in any way by those kinds of considerations," said Mr. Rieders, a Democrat.

Mr. Ridge called him a "renaissance man" and "the right kind of person to be presiding over a trial of such emotional and historic importance." He added, "I don't think he goes in with a point of view based on anything prior. I really don't. I think he loves the challenge."

And all this testimony came in before the decision was rendered.

The Judge saw ID collapse before him

The DI's Dr. West went on to say of the Judge, "He has conflated Discovery Institute's position with that of the Dover school board, and he totally misrepresents intelligent design and the motivations of the scientists who research it." Not so. The DI was not on trial here; the Judge was merely repeating statements of the defense's own witnesses, including Drs. Behe and Minnich, who are fellows of the DI. They acknowledged under oath that ID cannot qualify as science unless the definition of science is completely changed to admit the supernatural. Behe acknowledged that under his definition, astrology would equally qualify as science. They admitted that ID is more plausible to those that believe in God – a rather peculiar feature of an allegedly scientific theory. They insisted that the "Designer" does not have to be supernatural, but were unable to come up with any credible account or hypothesis of what such a "natural Designer" would be, or how to test for its existence.

And this is after over a decade of research by the self-described "nation's leading think tank researching the scientific theory known as intelligent design."

Not a single peer reviewed paper proposes any concrete test or advances any solid testable evidence regarding a Designer. Every major scientific organization in the nation has come out against ID, saying that it has no business masquerading as science. This week, Science magazine, the premier journal of American science, named Evolution as the Scientific Breakthrough of 2005, and specifically lambasted ID as non-scientific. Dr. Donald Kennedy, editor of Science, said in an interview with Reuters,

I think what arouses the ire of scientists (about intelligent design) is ... the notion that it belongs in the same universe as scientific analysis. -- It's a hypothesis that's not testable, and one of the important recognition factors for science and scientific ideas is the notion of testability, that you can go out and do an experiment and learn from it and change your idea. That's just not possible with a notion that's as much a belief in spirituality as intelligent design is.

For over a decade, the DI has claimed that their notion of ID deserves pride of place alongside conventional evolutionary theory. But they have refused to publish the peer-reviewed papers, to present their "research" at scientific conferences, to be held accountable in the scientific community on any terms whatsoever. This week they were held accountable in federal court. The results weren't pretty for ID supporters. It's hard to find a single sentence in the Judge's 139-page decision that offers succor to the DI crowd. It's even harder to find a place where his judgment erred with respect to the facts. Unless, of course, the defense's scientific experts were not representing ID accurately.

Throughout the trial, Judge Jones let the attorneys on both sides draw out the testimony they wanted from their witnesses. He seldom intervened in the questioning, and did not sustain objections from either side unless they were rooted in correct procedural law. He frequently said, "well, this is a bench trial, so I'll allow it" to let both sides present the fullest possible explication of their views. Both sides had the chance to put everything on the table. They chose their own witnesses; none were peremptorily excluded (though the defense fought ferociously to keep Barbara Forrest off the witness stand, knowing the damage she would do by revealing the religious origins of ID).

Witnesses for both sides had to speak under oath about their side of the case. The judge did not impugn the testimony of any expert witness, although he did have some choice words for the prevarications of some former members of the Dover School Board.

The DI cannot claim that ID didn't have a fair opportunity to be represented on an equal footing with science in a public arena. It had its fair chance, but for mysterious reasons, most of the DI's "expert witnesses" were withdrawn. Apparently there are too few ID supporters with expertise in the appropriate areas, because no one was offered by the defense to replace the no-shows.

Judge Jones was clearly as unimpressed as the scientific community is by the representations of the Discovery Institute's witnesses for the defense. Michael Behe's remonstrations about the scientific validity of ID were characterized as "mere assertions," with no empirical evidence. The plaintiffs showed that Behe, who was on the stand for three days, was unaware of published, peer-reviewed evidence that demolished his favorite "irreducibly complex" notions such as the bacterial flagellum and the blood clotting proteins. In fact, presented with a mountain of published work to the contrary, he merely sniffed that it was inadequate, though there was no evidence that he had even read it. The plaintiffs' testimony about macroevolution, exaptation, natural selection, the fossil record, classification, and homology went completely unrebutted. Moreover, the Judge added (opinion, page 84), "the Court has been presented with no evidence" that either Defendants' testifying experts or any other ID proponents have any expertise in these areas. Which we knew all along.

Based on all of this, Judge Jones ruled bluntly and clearly that ID is not science. ID proponents' most common complaint is that Jones dared to rule on this larger scientific issue, rather than restricting himself to the religious purposes of the school board. They claim that it is not a judge's role to interpret science. But judges make these kinds of decisions every day, when presented with expert testimony to work from. They do it every time they have to decide a case involving criminal forensics, medical malpractice, DNA fingerprinting or paternity tests, product liability, environmental issues, or a host of other issues that arise in a modern technological society. When the scientific evidence and the consensus of the scientific community are as clear as they were in this case, why should the judge refrain from ruling on the scientific status of ID?

In fact, Judge Jones really had no choice but to rule on whether or not ID was science. The plaintiffs asked him to rule on exactly this, and so did the defense. The Thomas More Legal Center's chief counsel for the defense, Richard Thompson, acknowledged that like the attorneys for the plaintiffs, the defense had asked the judge to rule on the question of whether ID was science. They staked their whole case on the notion that ID was legitimate science, and that therefore teaching it had a legitimate secular purpose and secular effect, and this outweighed any religious goals that individual board members might have had. ID advocates can't complain now, after the fact, that the judge exceeded his charge. He did exactly what both sides asked him to do. If the ID supporters didn't take that brief more seriously, they should have.

The Party's Over for the Discovery Institute

So where does Judge Jones's decision leave ID? Rejected by the scientific community, rejected by organizations of science educators, and now rejected in Federal Court. What does the DI's William Dembski say about that?

"I think the big lesson is, let's go to work and really develop this theory and not try to win this in the court of public opinion," Dembski said in a New York Times interview. "The burden is on us to produce."

Indeed. That's what the scientists have been saying all along. And in the same Times article, Richard Thompson appeared to agree. "A thousand opinions by a court that a particular scientific theory is invalid will not make that scientific theory invalid. -- It is going to be up to the scientists who are going to continue to do research in their labs that will ultimately determine that."

He's right. And one of these days, there may even be some research that convinces the scientific community that ID is testable and not purely religious. Until then, it cannot claim status as a scientific theory, and it does not belong in the science classroom – as Judge Jones and the scientific community both recognized.

The fact is, the Discovery Institute took a terrible beating in this trial. "Intelligent Design," their main industry, which they have peddled relentlessly for over a decade as the Next Great Idea in science, was revealed as religion, not science at all. The DI's "wedge strategy" was exposed and established as a crypto-fundamentalist Christian ideology of politics and social change. Their alleged "experts" withdrew, leaving the defense in confusion. Their amicus briefs were ignored by the Judge, and their attempt to append the "expert witness report" of Stephen Meyer, who had canceled his testimony, was angrily rebuffed. And after the trial, the DI's Washington office head, Mark Ryland, publicly squabbled with the TMLC's Richard Thompson, who claimed that the DI had promised support and then cut and run.

It's over for the Discovery Institute. Turn out the lights. The fat lady has sung. The emperor of ID has no clothes. The bluff is over. Oh sure, they'll continue to pump out the blather. They'll find more funding, at least for a while, from some committed ideologue or another. But no one with any objectivity will take them seriously any longer as scientists. They had their fair chance, and they blew it.

And in the end, they couldn't have done anything else. Because there is no science to ID; it's just polemics. And now that's been settled in Federal Court.

Copyright Kevin Padian and Nick Matzke 2006