This is a doozy. The FRC is going after Judge John Jones. He was the judge in the intelligent design case out of Dover, Pennsylvania:
Judge Jones: Man of "Steal"
For years, conservatives have argued that activist judges take their cues from the ACLU. Now there's evidence that courts are taking more than cues. Last year federal Judge John Jones issued a long, sweeping opinion striking down Dover, Pennsylvania's policy on teaching about the evolution and intelligent design controversy, has been accused of stealing actual pages from ACLU briefs. The Discovery Institute has announced that a large portion of Judge Jones's opinion was copied nearly verbatim from a document written by ACLU lawyers. A study released by the Institute's experts found that 90.9% of the 6,004-word "Findings of Fact and Conclusions of Law" from the ACLU appeared in the ruling. The Institute found that Jones also reprinted a number of factual errors in his ruling that have since been retracted by the ACLU. Dr. John West, the Discovery Institute's Vice President for Public Policy, notes that Judge Jones has been hailed for his "masterful" opinion and lauded as "an outstanding thinker." Even Time magazine honored him as "one of the world's 'most influential people' in the category of 'scientists and thinkers.'" In the last four decades, some American courts have become little more than puppets of the political left. We shouldn't be surprised that these judges are bench warmers for activists--nominated not for their ability to think critically and interpret the law but for their ability to "cut and paste" from a liberal agenda.
First, the bolded portion is not, in fact, a sentence. The Discovery Institute's report is more factual:
In December of 2005, critics of the theory of intelligent design (ID) hailed federal judge John E. Jones’ ruling in Kitzmiller v. Dover, which declared unconstitutional the reading of a statement about intelligent design in public school science classrooms in Dover, Pennsylvania. Since the decision was issued, Jones’ 139-page judicial opinion has been lavished with praise as a “masterful decision” based on careful and independent analysis of the evidence. However, a new analysis of the text of the Kitzmiller decision reveals that nearly all of Judge Jones’ lengthy examination of “whether ID is science” came not from his own efforts or analysis but from wording supplied by ACLU attorneys. In fact, 90.9% (or 5,458 words) of Judge Jones’ 6,004- word section on intelligent design as science was taken virtually verbatim from the ACLU’s proposed “Findings of Fact and Conclusions of Law” submitted to Judge Jones nearly a month before his ruling. Judge Jones even copied several clearly erroneous factual claims made by the ACLU. The finding that most of Judge Jones’ analysis of intelligent design was apparently not the product of his own original deliberative activity seriously undercuts the credibility of Judge Jones’ examination of the scientific validity of intelligent design.
What's misleading here? First, the FRC says Judge Jones copied from the ACLU briefs. That's not the claim DI makes. DI claims that Judge Jones copied from the ACLU's Proposed Findings of Fact. Most likely, Judge Jones asked the ACLU, as the prevailing party, to prepare Proposed Findings of Fact, Conclusions of Law, and Order. The DI would then have an opportunity to object to findings of fact, conclusions of law, and parts of the order. The judge would then settle any disputes. The whole point of having the prevailing party prepare the Proposed Findings of Fact is so that the judge can copy from them. The Proposed Findings are very different from a brief. Copying from Proposed Findings is an expected and intended result. In my brief trial experience, it was not unusual for a judge to strike the word "proposed" and sign the the findings of fact or order as prepared by prevailing council. It's a question of efficiency.
The FRC gets another fact from the DI report wrong. The DI report talks about 90% of one section of the Findings of Fact. The FRC restates the claim: "A study released by the Institute's experts found that 90.9% of the 6,004-word 'Findings of Fact and Conclusions of Law' from the ACLU appeared in the ruling." In fact, the Findings of Fact and Conclusions of Law are far longer than 6,004 words. The complete document is roughly 34,000 words and 139 pages. The FRC misleads again, trying to convince its readers that 90% of the entire document was taken from ACLU filings, when the study itself only makes that claim about a portion of the document.