My name is Gayle Horwitz, I am the
president of the Northeast Ohio Chapter of
the American Constitution Society.
We are co-sponsor of this event with Case
and we're so thrilled to be able to do so.
The American Constitution Society
is a national organization that is
comprised of lawyers,
judges, law students,
really anyone who's interested in
learning more about really important
issues of civil rights,
constitutional law, and public policy.
We have a program about once
a month typically they're free and
we really encourage everyone to
check our website, acslaw.org, and
try to get involved with us.
There's also a law student
chapter right here at Case.
Next month, we'll be co-sponsoring a great
event with them, a Supreme Court preview,
and if you guys grab the green sheet on
your way out you can read a bit more about
that and we hope that you'll all attend,
it's over at the law school.
Really quick, I just want to make mention
of anyone who's here to get CLE credit.
This is the form that you need to
fill out, it's a white form and
it's at the table at the back.
So please be sure on your way out
that you fill out this form and
leave it on the table, okay?
There's no other way to get CLE credit, so
if you just signed your name in,
that's not going to work.
We needed to fill out this form, so
please, please be careful
about doing that.
So without further ado,
thank you again for coming and
I'd like to turn it
over to Professor Hill.
>> Hi, my name is Jesse Hill and
I'm an associate professor
here at the law school.
And I am extremely please to introduce
our speaker tonight the honorable
John E Jones, III of the US district court
for the middle district of Pennsylvania.
Judge Jones began his legal career
in private practice in Pottsville,
Pennsylvania and
worked in private practice until he
was elevated to the federal bench.
He was appointed By George W Bush in 2002.
Even before becoming a federal judge,
however, Judge Jones had served
the public in a number of ways, including
as the Pennsylvania State Attorney for
the DARE program,
Drug Abuse Resistance Education.
As well as a member of then Pennsylvania
Governor Tom Ridge's Transition Team.
And then Governor Ridge subsequently
appointed judge Jones the Chairman of
the state's Liquor Control Board and
he has been very active in alcohol
education as well at the national level.
Judge Jones is a graduate
of Dickinson College and
the Dickinson School of Law of
the Pennsylvania State University.
He also holds an honorary doctorate in Law
and Public Policy from Dickinson College
which recently recognized him as one
of its 25 most influential graduates.
His other honors and
recognition include an honorary doctorate
in Law from Muhlenberg College.
Recognition from Time magazine as one of
the 100 most influential
people in the world.
The Rave Award for
policy from Wired Magazine,
as well as the first ever
John Marshall Judicial Independence Award.
Judge Jones has presided over a number
of important in high profile cases.
But for our purposes here today,
of course, the most noteworthy is his 2006
decision in the case of Kitzmiller
v Dover Area School District.
In which he ruled that the school
district's attempt to require
mentioning the theory of intelligent
design and public school classrooms
as an alternate to evolution violated,
>> [LAUGH]
>> Freudian slip there.
>> [APPLAUSE]
>> [LAUGH] Violated the separation of
church and state required by
the First Amendment of the Constitution.
Since this was the first test of the
constitutionality of teaching intelligent
design in the public schools, and
since the case also proceeded to a full
blown trial, of course, it garnered
an enormous amount of media attention.
But it's almost certain that the case and
the opinion would not have received
as much national attention and praise and
continuing interest as it has.
Had Judge Jones not written such a
thorough, careful, and judicious opinion.
The opinion's skillful explication
of both constitutional doctrine and
the scientific evidence,
as well as its eminent readability,
have attracted the admiration of
legal scholars and scientists alike.
And as well I think it demonstrates
the quality of open-mindedness and
judicial independence.
And I think some of this judicial
independence in particular is going to be
the discussion of some
of judge Jones' remarks,
so I'll stop my introduction of him there.
I do wanna take a moment just to
mention that this lecture is of course,
a part of the Year of
Darwin Celebration this year,
since 2009 marks the 200th anniversary
of Charles Darwin's birth and
the 150th anniversary of the publication
of On The Origin of Species.
I would like to therefore thank all
the members of the Darwin Year planning
committee which is an ad hoc committee,
individuals from across the university and
its many departments.
But especially Neal Greenspan who
has worked tirelessly and for
free to make this extraordinary really
amazing group of series of events happen.
I also wanna acknowledge our co-sponsor,
the American Constitution Society.
And of course Gayle,
who you just heard from, for
both their generous financial and
logistical support.
Gayle has an enormous amount of energy and
commitment and
she brought that to planning this
event like everything else she does.
One other announcement,
[LAUGH] I've asked to make,
tomorrow there are more events
related to the Dover trial.
There is an event entitled
The Devil in Dover and
Elsewhere with Lauri Lebo whose book
is available for sale out front.
She's the journalist who covered the Dover
trial, one of the journalists, for
the local paper, and
the author of The Devil in Dover.
And Richard Katskee who
is here as well tonight,
and he's the attorney from Americans
United for Separation of Church and State.
One of the attorneys who
tried the Dover case.
That is tomorrow, so
that discussion will be tomorrow
at 12:30 in Clark Hall, Room 309.
And it is free and open to the public,
so I'm sure it will be wonderful.
So I will turn it over,
without further comment to Judge Jones.
>> [APPLAUSE]
>> Thank you so much Jessie,
thank you Gayle, thank you to
the society for having me, and
thank you for that beautiful introduction.
I am truly honored and delighted
to be with you this afternoon and
this evening to give you some
thoughts on a variety of subject that
obviously arise out of a, depending
on your perspective either famous or
infamous case that I
handled back in 2004 and
2005 and into 2006 as a matter of fact,
as well.
As we were walking across campus
earlier today, I noticed that there
were posters that were heralding
my speech this evening.
And Professor Hill pointed them out to me,
and
I saw that Charles Darwin's
face is on the posters and
I said to her,
I hope people don't think that's me.
>> [LAUGH] [LAUGH] But my life has been
filled with some interesting events and
interludes, obviously since I decided this
case in 2005, and I have been blessed
with invitations,
literally from around the world, to speak.
And I enjoy this.
I think this is something that we
should do as federal judges, and
we need to talk about the rule of law,
judicial independence,
the Constitution of the United States,
and the need sort of concomitantly for
a better civics education
in the United States.
And I'll get to some of
those topics in a bit.
I will tell you that as
gratifying as this has been for
me, with some speed bumps along the way,
that we will talk about.
It also has these entirely surreal
turns that my life has taken and
to give you just one quick sample,
I come from eastern central Pennsylvania,
the anthracite coal region.
I'm truly a small town boy.
And you couldn't make up
some of the things that have happened
to me over the last couple of years.
And I think of one that
happened last year.
Some of you may have seen
a documentary that Nova
did on the intelligent design trial.
I recommend it to you, if you're
interested in it, and if you haven't seen
it, they'll rebroadcast it, I think,
next year, on Darwin's anniversary.
And they asked me,
they said, would you do any
appearances in connection with this and it
was entirely well made and I said, well,
within my limitations and ethics, I said,
I would be happy to consider these things.
So one of the things that we did
is they took us to New York and
we went to the Carlyle Hotel and
they had this panel of experts and folks.
Some affiliated with the trial,
some not and
it was moderated by Sir Harold Evans
who's a very esteemed journalist,
was an editor of a major
newspaper in London.
So this is kind of a big deal setting.
Well, they had invited folks from
New York to our reception afterwards.
And I'm standing there and
this woman walks up to me.
You can't imagine where you find yourself
after doing something like this.
And as the woman is getting closer, I look
at her and I think, I can't believe it,
and then she gets closer and
it's Kathleen Turner, the actress who
apparently had an interest in this.
And she comes up to me and said,
you know, judge, she said,
you're a particular hero
of mine after deciding
that case and and
I was momentarily rendered speechless but
all that was going through my mind at
that point was that scene from Body Heat
or for
you younger visitors Jessica Rabbit but.
So I've had some interesting
things happen to me.
But to turn to a more serious vein,
I think that
we need to be cognizant of the fact that
if you poll in the United States today,
somewhere over half of the citizens
of the United States will
fairly consistently opine that somewhere
in the United States Constitution
it is expressly stated that
we are a Christian nation.
Also, if you poll you'll find that about
15% of our fellow citizens can tell you
that John Roberts is the Chief Justice
of the United States Supreme Court.
However, 65% of our fellow citizens
when polled can give you at
least the name of one
judge on American Idol.
>> [LAUGH]
>> It's true and if you put that in
the context of my, what I refer to as
my Dover experience, this was a case
that was litigated actively over a period
as I said of about a year, give or take.
We had myriad motions,
we had the hearings,
conferences with Castle Innermoores,
and finally a six-week trial.
I had voluminous submissions from counsel
coming at me from every direction.
It was a very carefully litigated
workmanlike endeavor for all involved.
And it of course it culminated in
an opinion that was longer than I wanted
it to be.
But as long as, I guess, it had to be
under the circumstances, 139 pages.
Now, some may believe,
some in this room may believe, that,
and certainly in other quarters,
that I got it wrong.
And that's perfectly fine,
that's the essence of this democracy,
you're entitled to your beliefs.
But I will say that they
can't say that the lawyers,
the parties, and this judge didn't work
at it and try, at least, to get it right.
But therein lies a lesson from
litigation of this type and
something about our judicial system.
And that is that judges, indeed, I'm here
to tell you, if you didn't know this,
already, go about their work, their
duties in a very workmen-like fashion.
It isn't magic.
It isn't particularly sexy.
We do what we're supposed to do.
We find the facts and
we apply the law as we find it,
particularly in the district courts,
in the trial court, as I did in this case.
The law in my case,
it was handed down by my circuit.
The 3rd Circuit, and of course,
the Supreme Court of the United States.
And those of you who are involved in
the law, students, lawyers, otherwise,
you of course know that.
But in the immediate aftermath of my case,
while of course,
I was gratified by some
of the evaluations from
various individuals and commentators.
I took it on the chin from some pundits
who are, I'm sure, well-known to you.
For example, the evening of
the day that I released the decision
basking in the glow of having
gotten a decision out ahead of
schedule my own self-imposed schedule,
which was before the end of the year and
sitting happily at home as we know,
the sort of preliminary
reviews were coming in.
I was channel surfing and doing what
males do I control the clicker on the TV
set and to my wife's great chagrin,
she's yelling me stop, please stay on
one channel, and stop channel surfing.
And there was a teaser
on about Bill O'Reilly
who was going to discuss the case.
Now, I don't watch Bill O'Reilly as a rule
because I don't like to go to bed with
indigestion where people
are screaming at each other.
>> [LAUGH]
>> But hubris is a difficult and
sometimes terrible thing, so
I said well I'm gonna watch Bill O'Reilly.
Which then led to my watching, balefully,
as O'Reilly kicked the stuffing out of
me with his friend Judge Napolitano for
the first ten minutes of the program and
ended this exchange by saying, you
know Judge O'Reilly looked at Napolitano,
he said here we are five days before
Christmas, and we have another federal
judge taking away your civil liberties.
And they shook their heads sadly and
what an idiot I had been in this case and
I quick;y turned the TV on but
I looked at my wife and
said shouldn't have watched that.
So that's how I ended my day.
Then in the period after that,
the Reverend Pat Robertson said that
it was likely that a catastrophe would
befall the town of Dover because of their
highly unreasonable choice to
unelect their school board and
I began to wonder if I was gonna get
hit collaterally by that the damage.
Dover's still there.
I'm still here.
You might wanna stay.
A couple paces away from
me after the lecture.
Phyllis Schlafly,
now that's kinda generational.
Not a lot of people remember
Phyllis Schlafly that well.
If you get around,
Phyllis Schlafly was a great,
conservative firebrand in the 60's and
70's, and is not quite so well read today.
But Phyllis Schlafly wrote a column, and
it was called
Judge's Unintelligent Rant Against Design.
And in it she said, and I can almost quote
this verbatim because it gets seared into
your consciousness when you see it.
She said that John Jones was appointed
to the federal court by George W Bush
who owed his election to
evangelical conservatives,
and as a reward for
that Jones turned around and stuck a knife
in the backs of those who brought him
to the dance in deciding this case.
And finally,
the coup de grace was administered
some months later by Ann Coulter.
>> [LAUGH]
>> Well, it's true, in her book Godless
that was published that spring, and
I discovered this quite by happenstance.
You haven't lived til you've
been in a Barnes and Noble and
you realize that there's a book in
the front of the store on the best sellers
table in which you're eviscerated.
>> [LAUGH]
>> And she said that I was a hack,
that I didn't understand the law, and that
we hadn't had a first amendment scholar
near the bench like this since Harriet
Myers almost made it to the Supreme Court.
>> [LAUGH]
>> You can tell she
didn't like Harriet Myers apparently,
either.
Now these things are tough to take,
but it goes with the territory.
But they're very instructive, and
they shared, in my view, a common element.
And that is that too often, and
of course, pundits will be pundits,
and commentators will be commentators.
But there was a considered neglect,
and an omission that was evident.
These people don't explain how judges
work and it's on us, I think too,
that we don't talk enough about,
as I said, how judges decide cases.
I think they know better, obviously, and
they tend to demagogue these things for
their own purposes, but I think we
need to talk about how the world
really works as opposed to how they think
it should work, some of these folks.
And it's debilitating, I think,
in our system of government, and
particularly on the judiciary
if we don't do that.
Consider, if you will, another case that
was decided not long before my case,
and that's the Terri Schiavo case,
you all remember that.
It was certainly in its time, at least as
focused upon, if not more, than my case.
I happen to know the district GI to decide
that case, his name is Jim Whitmore,
he's from Florida.
And you'll remember
the essential facts of the case.
But what happened was
Congress hastily passed a law
that mandated federal involvement
in a case that really was,
I think, most feel now,
quintessentially a state issue.
Judge Whittemore was
faced with an injunction.
He had to review,
among other things, whether or
not Terri Schiavo received due
process because of this legislation,
and all the things that were
done through dozens, literally
dozens of judges that had the case
before he did in the state court system.
And he decided that what
took place in the underlying
state action passed constitutional muster
as to Terri Schiavo and her family.
Now, as you well know,
Terri Schiavo subsequently passed away.
And by the reactions that this engendered,
you would have thought
that Judge Whittimore and
the other judges pulled the plug on
the respirator when they, in my view,
decided that case properly,
carefully, and according to the law.
And it invited a lot of
criticism of the judiciary,
who do these judges think that
they are deciding life and
death issues, and of course,
we do that in the judiciary.
We are tasked to do that occasionally.
Judge Whittemore suffered
a similar fate to what I have gone
through in this case, and it was something
that was totally unexpected to me.
Which is that for a period of time
after he decided Schiavo, and
for a period of time after I decided
this case, we both had to have round
the clock United States Marshal
protection because of threats to us and
to our families that we received.
Which is a little bit of sad statement
about the way things work in the country,
and he’s an unfortunate kindred
spirit in that respect.
So that prompts the question,
I think, why is this happening?
Why have we arrived at this point?
And I think you have to go back,
first to look at some of the examples
I gave a couple minutes ago.
How bereft I think we are of a good
civics education in many quarters,
and for our purposes this afternoon,
particularly
how we lack an understanding of how
the judiciary works in the United States.
The American public simply stated it
does not have a good grasp of how judges
operate, and you take that,
that sort of lack of understanding.
And as I said I blame the judiciary
incidentally for that,
because I don't think we
talk about this enough.
It's not totally on us but
we have a role to play.
And then you put an overlay on that of
this 24 hour news cycle, and you all know
that it exists, and the punditry that
sort of whipsaws people back and forth.
And I don't mean to make this left, right.
I don't do politics, in particular, but
you all know what I'm talking about.
You have folks who have their favorite
pundit, and I find it's confounding.
And they'll quote them everyday.
They'll say well, as Rush said today, and
then what comes out is what they
think the world is supposed to be.
And it can be- You could watch
Rachel Maddow, I suppose, on TV now, and
say the same thing on the other
side of the equation.
We don't have broad based,
I think, sources of news.
News has become more opinion I think.
That's a personal view point.
But it does coarse the synergistic result,
where I think it dumps down
portions of the American public and
leads to an even worse situation as it
comes to understanding our government, and
as I said in particular the judiciary.
If you look, in particular,
at my case, and
perhaps one of the seminal
issues in my case and
back to sort of polling, you'll find that
in the United States, if you poll today,
and Richard Katskee, who is one of
the very, very able attorneys for
the plaintiffs and who's speaking,
as was noted, tomorrow, knows this well.
About 50% of our fellow citizens believe
that creationism should be taught in
place of evolution, or
should be taught alongside of.
Or some form of it should be taught
alongside evolution in our schools,
and so that gave rise to a belief
on the part of a public that
doesn't necessarily understand the rule of
law, and the way the judiciary operates.
They say, well, why doesn't this judge,
and then sort of the pundits fed this as
well, as they've said, why doesn't
this judge get with the program?
Why doesn't this judge do
what the public wants?
Why doesn't this judge allow
this policy in Dover's high
school that injects intelligent design
into the ninth grade science curriculum?
Well, you know, those of you who are And
I suspect you are all here because
you are enlightened citizens,
and I'm preaching to the choir
to a certain extent.
And particularly those who are lawyers,
that we have this thing
known as the Bill of Rights.
We have the First Amendment,
we have the Establishment Clause within
the First Amendment, and we have
literally generations of jurisprudence.
That has to do with
the Establishment Clause, and
tests that we apply as judges when
controversies of this type come up.
But in the face of that,
we have an American public that largely
believes that the Judicial
branch is a majoritarian branch.
Now, you know that we're not,
and yet that's lost.
So the public thinks that
we're like Article I and
Article II of the Constitution,
creating respectively the Legislative
branch and the Executive branch.
They are directly
responsive to the public,
they are majoritarian,
they sit in popular elections.
They're designed to be on the ground and
reflective of what the public wants and
needs at any given time.
But Article III was expressly designed
by the framers to be non-majoritarian.
Judges are responsible,
not to the popular will at any given time,
but to the Constitution,
the Bill of Rights, and to the land.
And what I suggest to you and I submit to
you that we have to do as law students,
as lawyers, as interested and
engaged members of the community,
which I'm quite sure that you are.
And again,
signaled by your presence here today.
Is find a better way to
express how our system,
which I think is the best
system of the world.
And that's a conceit that I suppose, but
I truly do believe that
how that system works.
And I wanna reflect for
a moment on that document,
that wonderful document which is
the United States Constitution.
Now, over the last couple of years, and
i joked about this poster with older
Charles Darwin's face on it,
he was an interesting looking character.
I hope that I never get to look quite like
Charles Darwin as I get into my dawn age,
but I know that I'm inexorably
linked with Charles Darwin and
probably will be for the rest of my days.
I don't know how my case will withstand
the test of history as time goes on.
I know I probably wrote the first line
of my obituary, but I also know that
we're coming up on the 200th
anniversary of Darwin's birth and
the anniversary of the publication
of Origin of the Species.
But think for a minute,
and go back to 1831.
Charles Darwin, at that time,
was still a very young man, and
hadn't yet arrived at the point
that he would in his endeavors and
labors that would make him so famous.
But there was another young man at
that time who traveled to America to
research what would become a seminal work,
and it was called Democracy in America.
And some of you may be familiar
with that in your studies,
that was Alexis de Tocqueville.
Now, some of de Tocqueville's
observations that were
made about 170 years ago,
if you go back and you look at them.
I would suggest they're
terribly insightful, and
they're eerily prescient as we
reflect on where we are in 2008.
He recognized, this man of Darwin's time,
that ours was an imperfect
system of government.
But he said this, and
I would quote from Democracy in America,
in examining the Constitution
of the United States,
which is the most perfect
constitution that ever existed.
One is startled at the variety of
information, and the amount of discernment
that it presupposes in the people
it is meant to govern.
The government of the union depends
almost entirely on legal fictions.
The union is an ideal nation, which
exists, so to speak, only in the mind.
And whose limits in extent and
only be discerning to the understanding.
To the understanding.
Eerily prescient, I think,
as we look at where we are today.
And I think Tocqueville recognized
the necessity of our citizens to be
engaged and to understand the rights and
privileges that flows from
the Constitution, and
that's a challenge that we have.
He apprehended long ago what,
again, is sometimes lost today,
that is that we have a system
of checks and balances.
And in particular our judiciary,
as you know, was designed to
protect against the tyranny of
the majority, and that means at any level.
Consider in the context of
the Kitzmiller versus Dover case,
that in this case, you had a group
of parents who coalesced together,
and in the face of very daunting odds,
obtained counsel.
And had their constitutional rights
vindicated in a court of law.
That would not happen, folks, as you
know in most countries across the world,
no shots were fired.
No one died.
The case was decided, I think,
as it should've been, and
as the framers intended it to be,
and as Tocqueville thought,
I think, that the Constitution
was designed to work.
He also admired the Constitution not only
is an ideal, but recognized that its
essence was not easily modified based on
the whim of the people at any given time.
Which is sort of an extension
of that non-majoritarian
aspect of the judiciary, isn't it?
When you think about it, over the 221
year history of the Constitution,
there have been over 10,000
attempts to modify it by amendment,
only 27 have succeeded.
So there's a certain lasting durability
to the Constitution that probably
exceeded the framer's wildest
expectations and dreams.
With all the admiration and
study of what was to
Tocqueville a most vexing,
but at the same time a compelling,
and fascinating, and noble country.
He worried about our long term
survival and our quest for equality.
In that vein, this is the last sentence
that he said in Democracy in America,
which is sort of the heavy duty work and
a little ponderous at times, but
you can extract some pearls from it.
He said it depends on themselves whether
equality is to lead to servitude or
freedom, knowledge or barbarism,
prosperity or wretchedness.
Words I would suggest for
our time as well.
Last week I had an opportunity
to spend some time,
as I do occasionally,
with a supreme court justice.
And I've had the great good fortune
to meet several of them since I've
been privileged to get
on the federal bench.
And last week it happened
to be Justice Alito.
Now, you may, in your daily lives,
agree or disagree with the works of
individual supreme court justices.
But they are all fascinating and
interesting people, and
occasionally fun to be around, and
always stimulating to talk to.
And in the small group that we were in,
Justice Alito Told
us during our exchange with him that
he's never driven by his headquarters,
the magnificent building that houses
The Supreme Court in Washington.
Nor has he walked up the front
steps of that building, and
then he's been on the court several
years now, without focusing on it and
being transfixed by the four words
that are engraved on the edifice.
And they are equal justice under law.
And he said that he shares that
with all of his other colleagues on
the court who are transfixed by that.
No matter how long their service, and
as you know some of them have served
literally for decades, they're moved and
inspired by that passage.
We should reflect on that too, the
beautiful simplicity of those four words,
and how we should cherish, I think,
a judiciary that does in the main, I
would suggest, what it is supposed to do.
We can get it wrong,
we are deeply imperfect at times,
that's why they have appellate courts and
we can get reversed.
And believe me, I have been reversed.
I'm far from perfect.
But I'm here to tell you that we work
in every instance to get it right,
I do, my colleagues do.
And I want you to understand that
as you think about what we do.
We, I believe, are upholding the ideals
promulgated by those wise men
who assembled not that far
from here in Pennsylvania,
in Philadelphia, about 221 years
ago during that very hot summer.
So if I can enlist you to be
a little bit more circumspect and
to consider this treasured
system of justice that we have,
then I will have achieved something
this afternoon and this evening.
As lawyers, as future lawyers,
as interested citizens,
members of your community,
all I would posit to you that it
is your duty to work to uphold
the system that we have.
So I thank you again for having me, and
I guess we're gonna have the professor
come back up, and I'll be here.
>> And we have a bit of time now for
a question and answer.
Two things first.
Again, to remind you, if you're here for
CLE credit you must fill out that form or
you will not get it.
It's on the tables outside.
And then second,
this is being recorded, so
we have mics going around,
there's going to be a webcast available.
So if you have a question, please raise
your hand and someone will bring you
a mic, and please wait for
the mic before you begin speaking.
Okay, thanks.
>> [APPLAUSE]
>> Okay, we found one back here.
>> Okay, the mic back there,
[INAUDIBLE], go ahead.
>> Your honor,
given the thrust of your decision,
how would any proffered expert witnesses
for defendants pass Doughbert muster?
>> Pass what muster?
I'm sorry.
>> Doughbert.
>> Well, they pass muster under that
test in terms of being able to testify.
I let them in.
It was not that I couldn't
hear their testimony.
If it was a jury trial it might
have been somewhat different,
we might have had that challenge.
But what I did do is I took that case,
and this is inside baseball, and
I know that we're not
quite all lawyers here.
But that case of course stands for
the proposition that judges should be gate
keepers and should not junk, or bad
science, or non science in the courtrooms.
But that case was instructive
to me in a sense,
as I determined whether in fact
intelligent design was good science.
You can extract the lessons of Doughbert.
Is it testable, is it generally accepted,
has it been peer reviewed?
And so forth.
And so it was helpful there.
But I heard the defense witnesses, and all
the ones who wanted to testify testified.
I might not have accepted as
scientifically sound their testimony,
but they were not barred from testifying.
>> A question I have, I was so thrilled
when I read the results of this case,
I didn't really think I was
living in the same country.
But did you ever get any feedback
what the Bush administration thought
when the person that they'd appointed
did not exactly follow the script
that they had in mind?
>> Right about the time
I decided the case that
the President's Science Advisor
commented publicly,
and Richard may remember his name,
and I don't remember his name.
Okay, he said publicly that he
was gratified by the decision.
Which was interesting in light of some
statements that the president had
apparently made prior to the case
about intelligent design.
But now, as we were talking
about this earlier today,
the beautiful thing about
the Constitution in Article III
in the appointment of judges who
are confirmed and serve for life.
So long as we behave ourselves, is that
we're untethered from the mother ship.
We don't check in with a benefactor.
And again, that's something that is lost
and in the same vein as I just discussed.
Many members of the public think that we
are constantly beholden to
those who got us there, and
that we have to adhere to their whims and
their philosophies, well, we don't.
So I mean, I don't know, and it wouldn't
matter anyway in terms of my decision.
But I think it's probably like everything
else, some liked it, some didn't like it.
No, the criticisms came in the main
from quarters outside government,
more from the sort of
punditry as I described it.
>> Your honor,
you mentioned that in polling,
50% of Americans don't believe that
Christianity is part of the Constitution.
As a scientist and coming at this case,
from a scientific point of view,
if you do similar polls you can
find that 50% of Americans think
that the the sun goes around the earth,
or the earth is flat.
Which are demonstrably wrong,
maybe a little bit harder than
actually looking at the Constitution.
So you mention that
education is important.
Now, in science, there's well, lots of
education that's supposedly out there,
yet there's still all these
misconceptions in the populace.
So what mechanisms would you suggest in,
say law, in civics, for education?
And then perhaps how can this
be extended to other fields?
>> In Pennsylvania we have
a wonderful initiative
that's started by our first lady, who also
happens to be a federal judge herself.
Midge Rendell is a third circuit judge.
It's called Pencord.
And what it does is it tries
to give teachers some tools.
Because it's really not on the teachers,
it's what school boards mandate,
it's what the curriculum
is designed to be.
And I think the theory is that
we've gotten into a sort of
a world cultures
Educational opportunity for
people but we don't do enough
bedrock civics education.
Former justice Sandra Day O'Connor is
working very hard in this area, as well.
So I don't think it's magical, and
Sandra Day O'Connor says very frequently,
and this is not stamped
on our genetic material.
It has to be learned and relearned.
And it's sorta a good
bedrock civics education.
I think maybe there was an assumption.
I'm not sure about this.
And I'm not an expert in
teaching by any means, and
I don't mean to hold myself out as one.
But I think there was sort of
an assumption that people got this.
That you sorta, well, gee,
everybody knows how government works.
Well, they don't.
They don't really understand.
And so I think we have to amp up and
sort of develop a curriculum that
pays some real sincere attention to
the American system of government,
all three branches, the Constitution and
so forth because it's really been lost.
And the corollary is that if you don't
understand, if you don't have a basic
understanding of the law in particular and
how our system works, what's gonna happen?
You're gonna be at risk of
losing your rights, aren't you?
Or having someone do something that
is deleterious to those rights.
So it isn't just that we ought to know
better and we ought to respect the system.
It goes right to the individual.
We need to know what the rights and
privilege that we have as
citizens in a democracy.
>> I was curious,
supposing a school board somewhere
decides that the student should be
taught some really not the idea that
does not have a religious basis, so cannot
be thrown out on establishment grounds.
Would the parents of the children
have legal recourse to say that
we don't want this taught?
And the question, I was intrigued
because in the Scopes trial appeal to
the Tennessee Supreme Court,
one of the attorneys, Arthur Garfield Hays
suggested that teaching a ridiculous
idea in schools would be a violation
of the 14th Amendment,
strictures against unreasonable laws.
That case got punted but I was curious
whether the parents would have an recourse
under the 14th Amendment say?
>> Well, stupidity's not
necessarily unconstitutional.
>> [LAUGH]
>> It sounds flippant but it's true.
So one of the lessons that came
out of the Dover case is be
careful who you elect to
your school board, truly.
You need to keep your eye on the ball and
ask some pertinent and
careful questions before
you cast your vote.
And I would think, in retrospect,
the citizens of Delaware may still some
of them be beating themselves up,
that they let this happen.
I don't think that that school
board ran on this kind of agenda,
I think this was sorta below the surface.
And that's what they wanted to do.
But in terms of something that's
not constitutionally infirm,
you know state boards,
local boards will do what they wanna do.
That's democracy.
You wanna watch who you
put on these boards.
>> The Military Commisions Act of 2006, do
you think that that act is constitution-
>> I'm not gonna give an opinion on that.
I don't wanna.
No, I can't.
I mean, I'm not gonna give
an advisory on something that's not,
with all due respect, I mean,
that's where I have to not-
>> Well, how about the-
>> Tread into-
>> How about the military judges?
Do you think that they have the same
committment to equal justice
under the law that let's say you have-
>> I don't
work with military judges and that's
a dangerous territory for me to get into.
I don't know why they wouldn't,
but that's a periless area.
And I apologize.
We ought not, we can't as judges within
the ethics and the rules that they
govern what we do venture opinions
on cases that aren't before us and
haven't been decided, so
I won't trend into that area.
>> Would the public be better educated
about the federal courts of television
cameras were alowed in and do you think
that they would have been better served if
your trial had been televised?
>> Yes and yes.
Yeah, absolutely.
I was telling Professor Hill today that
couple weeks before the trial started,
I received motion intervene from Court TV.
I was then Court TV, and I forget what's
rename now, but they wanted to televised
the case wire-to-wire and there is a very
strong predilection against televising
cases in the federal courts, I've been
on the bench three years at that time.
And I thought this is gonna look
like a tremendous grandstand.
And we also had a local rule in
our district about televising it.
And they filed a motion to reconsider.
And I thought I wonder if I should
maybe take the bold stroke.
I joked with people later.
For those of you of a certain age who
remember and most of you it looks like.
The OJ Simpson trial,
I couldn't get Judge out of my head.
And I thought, seriously.
You're not sure.
You think about not just the lawyers
interacting with the TV cameras, but
you'll wonder how you'll come up.
But that wasn't really the calculus.
It just wasn't permitted in retrospect,
and having now been six
years in the bench,
we're gonna get TV cameras, and we should.
I know that there are people in the
federal judiciary who disagree with it.
There's no reason not to.
They're very unobtrusive.
The lawyers don't play to the cameras
in other courts that I see.
I don't think I think that
you'll see them legislated
in a way that gives the trial
judge some discretion.
As you should have in a case where,
for example,
you have a victim whose identity
shouldn't be published or disclosed.
Or very sensitive cases.
But why not?
Why not?
I think it's
an excellent educational tool.
So I'm all for it.
Now there are some members of our Supreme
Court, who are very much against it.
But I think we're gonna move
pretty rapidly, I'd watch for
that in the next year or two,
I think you'll start to see that.
I certainly am for it.
>> Hi,
mine is a comment ending in a question.
I teach human evolution at the university
level, and to my surprise, but
also supported by polls of
over 50% in some instances,
people in the United States
believe in angels and UFOs.
So my question comment is,
what do you think
about teaching critical thinking skills?
>> Well, I would assume that education's
about teaching critical thinking skills.
I mean, isn't that the essence?
My wife is a former school teacher.
And I thought that's what you do.
And I think you try to do be fair.
Again, I think our minds just get
excessively closed in the United States.
That's a my personal commentary.
That's not in any official capacity.
I think people need to reach out and
see different points of view.
That I think that helps in
terms of critical thinking,
read a newspaper to every day,
get your news from diverse sources,
if you're locked onto
one channel every night.
I'd suggest you probably have
a problem one way or the other.
You ought to be more cafeterian the way
that we consume things but, so.
>> Your decision obviously
hinged on points of law.
Hello.
>> Where's our guy?
>> [LAUGH]
>> Back here,
the back
>> I'm sorry, okay.
>> Your decision obviously
hinged on points of law, but
it also depended on the ability
to evaluate scientific claims.
Do you think most judges or
federal judges have sufficient scientific
background to take on cases that involve
technical level scientific arguments?
And should there be some level of
education or continuing education for
judges-
>> Yes.
>> That provide background in fields
that will interact with the law?
>> Well, too many answers to that.
No, we're not generally
schooled in science and
you raise certainly a good point.
But that's why we have cases that instruct
us as to how we can measure whether
something is good science or not like the
Daver case that we talked about earlier.
And you don't have to be necessarily
training in the science to apply
that case.
That said though, we're getting
now in such a, well not getting,
we've been for a long time,
in such a complex world scientifically.
That there are these decisions
that hinge I think on scientific
principles that require that we
have some modicum of education.
I benefited from spectacular witnesses,
marvelous witnesses,
but it's not always thus.
And that could leave a judge
wanting in certain circumstances.
I've lectured to a group called ASTAR,
twice in the last couple years which
specifically has national seminars for
judges to teach them science.
And I think it's
a marvelous thing to do it.
And yeah, it's certainly a good
thing because you don't know
what the testimony is that you're
gonna get in a particular case and
some scientific education is a good thing.
We ought to have that.
>> Judge, my question, and
I'm gonna ask a question then comment.
The question is, can you discuss a little
bit how your decision has been cited
subsequent to it in other cases?
And the comment I had
was I watched a month or
two after your decision came out at
the State Board of Education here in Ohio.
As your decision was brought up as a
reason to reconsider what was then a voted
upon but not yet implemented
plan to teach the strengths and
weaknesses of evolution
in the Ohio schools.
And your decision was brought up and said,
let's reconsider it in the light of Dover.
And in fact,
that new language was overturned.
And subsequent to that, so
that's the only thing I've seen is
the political citation of your decision.
If you could talk about
the legal question.
>> It is been cited in a couple
of the cases in California.
I'm not sure where else,
where there were sort of nascent battles.
Richard might know this better,
assuming that I do.
But it has had, and I'm gratified by this.
And I certainly wrote it with
an eye to not only decide the case,
but to clearly set out in summary form,
what I saw in the case,
based on the scientific evidence and
the testimony that I had.
And I think in Ohio, my view is that it
was used as sort of a primer for those who
didn't really necessarily understand what
this concept was or what it represented.
And then of course, it's my view
after hearing the testimony, but
I think it did have persuasive effect.
So more than being cited,
I think within decisions it's been used
as sort of a compendium for people.
You may read it and
you may disagree with it.
You may agree, you may disagree, but
at least I think til you got through
the decision, not only would you be
enlightened as to what happened in Dover.
But I think you'd have a much better
idea about what intelligent design is at
the end of the day.
And I wrote it with an eye to do that.
>> Your Honor, as someone who
has attended public schools for
the majority of my pre-college education,
and in a rural area as well.
I would like to say that I'm not surprised
at all by many of the statistics you've
cited about the ignorance of
the American people on various subjects.
And a lot of people,
and various libertarian
institutions such as the Cato Institute
and the Campaign for Liberty.
Have called for
the abolishment of public schools and
replacing them with
the free market system.
What is your stance on this?
Do you find it constitutional,
or do you have an opinion?
>> No, I'm not gonna wade into that,
I [LAUGH].
>> [LAUGH]
>> I come here as a federal judge from
Pennsylvania, not the smartest man
in the world, so I don't have a-
>> [LAUGH]
>> [LAUGH] I don't have a view, but
it's a,
It's an interesting discussion to have.
I don't know how we'll ever abandon the
public school system in the United States,
obviously.
But this was about a public school,
this was not about a private school.
This was not about, or
we wouldn't of had the dispute.
>> Since there are rather a lot
of scientists in the room being
Case Western Reserve,
what advise would you have for
scientists who are called
upon to give expert witness?
>> If the lawyer who calls you as
an expert witness is an astute and
good advocate.
That lawyer will make sure,
not only that your testimony is
clear in the first instance.
And that you talk in a way that either
the judge, if he's the fact finder or
she's the fact finder, or
the jury can understand, but
also that you prepare yourself for
ardent cross examination.
I will tell you that in the Dover case
I think a failing on the defense side,
in particular.
Is that at least one witness that I can
think of, was not necessarily prepared for
the searing cross examination
that he received.
And so you must be prepared.
It is a world you don't know.
We don't know your world necessarily and
you don't know our world in a courtroom.
This is not a gentile debate.
>> [LAUGH]
>> And
I'm very serious, that happens
sort of in the halls of academe.
This was a federal court with a very,
very important and critical issue and
I think that if, and
as every issue typically is at
some level in a federal court.
And if an uninitiated scientist wades
in without proper preparation it's
the attorney's fault I would suggest.
So you need to have somebody who's
astute and prepares you for that.
>> Just earlier today I read a critical
review of the New Discovery Institute
textbook, which is at least
a little step-up for me.
Copy and
paste replacement of an old book, but
where they try to portray science as very
inconclusive on the topic of evolution.
They try and replace the Darwinian
tree of life model with
a special creation grove
model of some sort.
I think they're trying to get this passed
in Louisiana State Board of Education.
But I was curious if you had read it.
I think it's called evolution explained.
I didn't know if you had any
thoughts on going forward with this?
I doubt that they would be able to
make a court case out of it, but.
>> For the uninitiated, the Discovery
Institute is a group in Washington state.
And they, I'm not sure that it's an
overstatement to say that they're some of
the primary drivers of
the intelligent design concept.
They love me to death.
>> [LAUGH]
>> They'll get this on YouTube and
they'll see that I'm talking about them,
which will probably warm their hearts.
>> [LAUGH]
>> My view, they have, since the decision
was released, made an industry
out of launching ad hominem
attacks against me and that's fine, but
I wish that they would stick to facts.
It's not about me, at the end of
the day they may not like me and
they may disagree with the decision.
They ought to stick to the science and
the law.
But, no, I didn't see it and
I don't spend time worrying about the
meanderings of the discovery institute.
I mean they had a role in the trial.
It's debatable, at the end of the day,
what that role was, but
that's a matter for history.
Where are we?
>> Your speech was about
evolution in biology, but
you also talked about how
wonderful the US Constitution is.
The US Constitution is one of the oldest,
if not the oldest,
constitution in the world.
Other countries which have had
constitutions have revised their
constitutions, not just amended them,
some of them many times over.
When you say that you
venerate the US Constitution,
doesn't it sound a lot like people
who say we venerate the Bible?
And doesn't it sound a lot like this is
something which we simply cannot change?
it is the way that it is.
It simply is the way that it will be.
Consequently, when you look at
evolution and you say, well no,
the Bible didn't quite get
it right 2000 years ago.
Is there perhaps a chance that
the US Constitution didn't get
it right 200 years ago and
that maybe it might eventually be revised?
>> Well it can be revised.
>> It's an evolutionary document.
>> No, I understand.
It can be revised through
the amendment process.
And there is that great
debate that always occurs,
if you brought Justice Scalia in here and
someone said that they believe that
the Constitution is a living document,
Justice Scalia would have a seizure.
>> [LAUGH]
>> Right in front of you.
Because he doesn't think
that it's a living document.
Justice Scalia adheres to,
and he says this,
he said the Constitution
is a dead document.
And you must go back to
the original intent, and
if it's not in there
you don't write it in.
Although I would suggest that
it's a lot more challenging than
perhaps some who say that it's
a dead document actually perceive.
My own view, and
again this is personal view,
I don't represent the view point of the
judiciary, generally is that you are on
a very slippery slope when you
open that can of worms and
you wanna redo something that I think
has withstood the test of time.
Yes, it's imperfect and there are portions
of the Constitution that you can
cherry pick out that are embarrassingly
arcane, but it's 221 years ago.
I think in the main it's done pretty well,
but
then again that's my personal viewpoint.
I do not equate
the Constitution with religion.
I think that's a stretch.
You may have that viewpoint but no,
I'm not saying that you do necessarily,
someone may, but I don't see it that way.
If you go back in jurisprudence and
you study the law and
you think about just how durable
the Constitution has been, it's marvelous.
Just a quick, if you'll indulge me, I'll
tell you the story that, I mentioned this
when we were talking privately earlier
today with the dean of the law school, and
Justice Souter told a story to a group of
us a couple of years ago about being in
the Supreme Court with a Russian judge.
And he was giving him a tour
of the Supreme Court,
and there was an interpreter there.
And they went into the judge's
conference room, and
that has a big mahogany table,
big impressive table in there.
And he said to the Russian judge,
Judge, this is the table,
Justice Souter said this is the table
where every major case, every case,
that's been decided by the Supreme Court
since 1937 or so has been discussed and
debated before the Justices voted and
eventually issued an opinion.
The Russian judge, this was interpreted
for him, he nodded, and he said,
the Russian judge said, well, Mr. Justice
Souter, he said, what case do you think is
the most important case that was
ever decided by your Supreme Court?
And Souter thought for a moment and he
said, well, he said I think Brown versus
Board of Education is probably
the most important case.
You're all familiar with that case.
And as he was saying it,
as it was being translated,
the Russian judge started to
shake his head no, [FOREIGN].
He said So Souter smiled and he said,
all right, you obviously disagree with me.
He said, what case do you think is
the most important case decided by
the Supreme Court?
And the Russian judge said
through the translator,
he said, I believe the most important
case was United States versus Nixon.
And you might remember,
that was the case that compelled,
ultimately, Richard Nixon
to turn over the tapes
that had been the product of
the taping system in the Oval Office.
And the Russian judge said, for those
of us who were in the legal system in
the former Soviet Union at that time, that
your Constitution mandated that the most
powerful man in the most powerful country
on Earth could be made to bend to the rule
of law was so significant to us because
that would never happen in our country.
And he said, I'm still not sure it
would happen in our country today.
And I think that, in my mind,
is an example that shows
the durability of the Constitution and
when it's at its best.
Yes?
>> So I know that the plaintiff's expert
witnesses, the scientists, were quite
brilliant and the attorneys were very good
at drawing that testimony out from them.
But I wondered on the other side.
>> You say that as you sit next to
one of he plaintiff's attorneys?
>> [LAUGH]
>> Indeed I do and proudly.
[LAUGH]
>> [LAUGH]
>> And I was even-
>> He's a modest fellow too,
you're gonna embarrass him here.
>> He wasn't one of the ones you saw
him on the TV all the time, it's true.
But I wondered from the other side,
you heard a variety of
creationist arguments and
I wondered which ones or
if you found any of them impressive or
you felt [CROSSTALK]
the defense's expert witnesses or
their ability to draw these out.
>> I'm not gonna go witness by witness.
If you read the opinion,
I'm sure you have,
you can get the sense of who I found more
impressive than anybody else and it's not-
>> Of the arguments specifically,
if there are any that seemed interesting.
>> It's hard to go back from time to time.
I kept an open mind
through the whole trial.
It was not a close call,
at the end of the day,
when all of the testimony
was in in the case.
I do, to the question the gentleman
asked earlier, I think that
not only were they superlative
witnesses on the plaintiff's side, but
they were well prepared and
they played to me expertly.
They understood what they
had in this judge who was,
after all, a liberal arts graduate
with a political science major,
and not a scientist, and
you have to know what you're doing.
I think the defendant's testimony
was all over the map, and
I don't think that their witnesses
were certainly as well prepared.
I will say that, but I'm not here
to denigrate anybody who appeared.
It's tough to get into a court of law and
to testify,
and it was a noble attempt on their part.
It just, at the end of the day,
it didn't carry.
Last week, in Britain,
the Church of England made a formal
apology to Charles Darwin.
[LAUGH] I'm not suggesting that
could happen here, but I wondered if
liberal or more progressive religious
institutions in the United States.
If they got together and sort of
reinforced the idea of separation of
church and state, made some sort of
general formal statement to that effect,
would that help the judiciary?
>> Well, I don't know if it's helpful
from the standpoint of the judiciary, but
you raise a good point.
I'll tell you, if you permit me,
another vignette.
I will say that at the time
I decided this case,
one of my kids was in high school and
had a band concert.
And I went to the high school,
I think it was the day after the decision,
and I am a Lutheran, and
my Lutheran minister was there.
And I hadn't seen him obviously, it was
only a day since I decided the case.
And he was very helpful to me, and very
encouraging through the whole process.
And he came over to me, and
he's a good guy, a good fellow,
and I knew that he wasn't gonna be
judgmental one way or the other, but
he came over and he gave me a hug.
And he said to me I really hate
what people are doing today in
the name of religion.
And that was a wonderful gesture, but
I've have been asked to speak
in many different settings,
seminaries, to different religious groups.
Mainstream, if you will, religious
groups who receive me wonderfully and
have a great curiosity
about this doctrinaire.
But because we have so
many different religions, and
indeed freedom of religion as set
forth in the First Amendment.
I don't think we wanna impose on any
religious group the need to sort of
get our backs.
It speaks for itself, but
I think the response from the mainstream,
if you will, however you define that,
religions in the United States has been
very gratifying, anecdotally at least.
>> Over here, I'll admit
I'm a little ignorant on this whole
judge process and things like that.
But I was kinda wondering, do you
have a difficult time separating your
kind of personal beliefs on a case
versus the facts based on the law,
your judge personality based on a case,
when you're making a decision?
>> Do I?
>> Yes.
>> No, I don't find that I do.
I think that that gets
inculcated as a lawyer.
You get your training where you can.
When I was a young lawyer I was
an assistant public defender,
and I tried homicide cases and horrible,
difficult cases,
where you well knew that your client.
I mean, in your heart you knew, and
sometimes you knew directly that your
client committed the crime,
they told you that.
You couldn't put them on the stand and
suborn perjury but
at the same time the quest was,
of course, in that setting,
to make sure that your client
received a fair trial.
And that the burden was
met by the government.
And it taught me something
about unpopular cases,
although in a micro scale to what I
went through in the in the Dover case,
and it also taught me that you
have to put aside those biases.
I represented people who were literally,
you could regard them as scum.
Very very difficult, very,
Unsavory people, but
they were entitled to counsel, and
they were entitled to have their
cases put to the test under law.
So you learn from those things.
And I think the essence of a good
judge is you don't do that.
And I give everybody their
day in the court of law.
>> I think we have time for
one more question, yes?
>> Yes,
I'm a current student here at Case.
I attended a public high school
in the State of Ohio, and my
Biology teacher made no secret of the fact
that he was a Young Earth Creationist.
And there was one lesson in which he
explicitly told us not to write anything
down and then proceeded to go off on
some very unscientific statements.
In an instance such as this,
where it is an individual teacher and
not the school board mandating it, what
is the proper recourse I suppose to
ensure that good science is being taught?
>> I guess I could ripen into a lawsuit,
and I don't wanna give an opinion.
I'm not here to give legal advice,
but what I think where I've seen that
happen, that in the first
instance most school boards.
Reasonable, decent school boards
understand or will be given to understand
the law by their lawyers, and they will
understand in a constitutional challenge.
And of course the Dover case stands for
this.
There is what is called a fee shifting,
where if they are joined in a lawsuit and
they lose, they could end up paying
the fees of the prevailing party.
And it's a straight out issue,
agree or disagree on the philosophy,
it's an issue of fiscal responsibility.
So I would posit that most school boards
don't want somebody off the reservation
like that, and that that should go right
to the school board in most cases.
And I think that's happened,
where you have a teacher who kind of
gets off the the curriculum and
begins to interpose something.
That might end up being unconstitutional
in terms of how it's being
presented to students.
All right, thank you all.
It was my pleasure.
>> Thank you so much.
>> [APPLAUSE]
