On New Year’s Eve, the Federal Judicial Center (FJC) published the fourth edition of its Reference Manual on Scientific Evidence. With an introduction by Supreme Court Justice Elena Kagan and the participation of left-legal glitterati like former judge David Tatel and almost-judge Goodwin Liu, it’s quite the tome. It also has the imprimatur of the National Academies of Science, Engineering, and Medicine, promising to “help judges reach an informed and reasoned assessment of [scientific] issues based on expert evidence that is faithful to the law and within the boundaries of scientifically sound knowledge.”
That all sounds grand until you take a closer look, at which point alarm bells should go off. The Federal Judicial Center, for one thing, is a bit of an odd duck of a federal agency. It’s not the adjudicative judiciary, embodied in the United States judges. Nor is it the administrative judiciary, as found in the Administrative Office for U.S. Courts. It’s sort of an in-house, federally funded think tank within the judicial branch — and one that is notoriously captured by the left and somewhat vaguely supervised by actual Senate-confirmed judges. And it is going to “help judges reach an informed and reasoned assessment of [scientific] issues”?
It’s an especially important question when it comes to weighing scientific claims. In fact, it sounds a lot like helping judges wield the judicial power from a position outside either our adversary system or vertical stare decisis. Generally speaking, in the American legal system, the two sides of a case make their best arguments, which are in turn evaluated by judges and juries. Frequently this involves scientific evidence, over which a body of law has developed over time both in cases like Daubert v. Merrill Dow and Kumho Tire Co. v. Carmichael, as well as in the statutorily promulgated Federal Rules of Evidence. Under the law, judges decide what science is sufficiently credible to be presented to a jury. They decide this after the scientific evidence is presented, tested, and weighed. Expert witnesses are cross examined, reports are rebutted, and judges evaluate them all against each other to determine what is credible.
Nowhere in the adversary system is there room for an authoritative-seeming Reference Manual (fourth edition) on scientific facts, assembled by committee and intended for, essentially, in camera use with no opportunity for rebuttal. Unlike an actual legal treatise, which is understood to be a legal expert’s considered argument about what the law says, this purports to be a reference manual — the sort of thing in years past where you could call a librarian and she would use it to give you factual answers.
Who needs an adversary system when you have the views of the National Academies of Science, Engineering, and Medicine? After all, the fourth edition was “reviewed” by the founder of FactCheck.org.
Those are the theoretical problems with this kind of FJC exercise. When you dig into the document itself, it becomes far worse. Take its “Reference Guide on Climate Science,” for example. On the first page you learn that the Intergovernmental Panel on Climate Change’s “Sixth Assessment Report (AR6) found that: ‘[i]t is unequivocal that human influence has warmed the atmosphere, ocean and land,’ and this has caused ‘[w]idespread changes in the atmosphere, ocean, cryosphere, and biosphere.’” It goes on to say on page 2, “The global warming attributable to human activities is unprecedented in the last 2,000 years and ‘is already affecting every inhabited region across the globe, with human influence contributing to many observed changes in weather and climate extremes.’” Nowhere is it mentioned that IPCC is a United Nations apparat.
The chapter goes on to explain that climate litigation is widespread and purports to help judges understand the “climate science” behind it. What kind of climate science? There’s “the foundational Carbon Majors study,” for one. (The Carbon Majors study purported to prove that most historical carbon emissions can be traced to around 90 companies.) There’s also “well-established attribution techniques.” (Attribution techniques are the “science” of how to blame specific companies for alleged climate change.) And don’t forget the “considerable confidence in the ability of global climate models to provide credible quantitative estimates of future climate change at large geographic scales.”
In other words, “climate science” is precisely what the plaintiffs in climate litigation say it is. It means that — according to the FJC — plaintiffs win and defendants lose. When Birkenstock municipalities show up in court, hand-in-hand with private trial lawyers, and argue that an oil company caused a trillion dollars in damages (some “experts” actually claim this), the judge can go consult his handy Reference Manual (fourth edition) and see that the Federal Judicial Center itself said the plaintiff’s methods are sound. It’s outrageous.
And it’s not an accident. The National Academies posted the proceedings of their workshop mapping out the fourth edition. What did they discuss? “How best to write a Reference Manual chapter that it is accessible to judges who might be more skeptical of climate science’s methods and conclusions.” Oh. Judge Tatel went on to suggest that they make it “credible to judges who are themselves perhaps climate skeptics,” i.e. persuade judges who are not sympathetic to plaintiffs.
Questions were also raised at the workshop as to “the idea of attribution, precision of measurement, and the likelihood of assigning responsibility for specific sources of pollution to specific companies or individuals.” It turns out those questions were not merited. You see, “Panelists replied that the infrastructure to monitor CO2 and other pollutants has developed significantly — this has led to more precise measurements in real time, and technology is accelerating to a point where such identifications may be possible.” Which panelists? Why, panelists like Donald Wuebbles of the University of Illinois, himself a plaintiff expert in climate litigation. Or Ben Santer of the Woods Hole Oceanographic Institute, also a plaintiff expert. And of course the entire workshop was “introduced” by Paul Hanle of the Environmental Law Institute, where the program he runs (the Climate Judiciary Project) is under investigation by House Judiciary Committee Chairman Jim Jordan.
Which leads to two questions: Why is the FJC doing this and why on earth is Congress paying for it?
The pending House appropriations bill for Financial Services and General Government funds the FJC to the tune of $35,121,000, while the Senate bill has it at $34,929,000. This is between $700,000 and $1 million more than their prior appropriation. Do House and Senate Republicans realize that they are funding ex parte propaganda for climate-change plaintiffs? Do the appropriators? I can’t imagine they do.
Did the FJC ever let, say, Senator Hagerty know, when they asked for his subcommittee’s money, that they needed it to teach judges how best to credit attribution theory and the diktats of United Nations bureaucrats? Did they acknowledge the role of climate-plaintiff experts in the process? If they did, I bet they wouldn’t be getting $700,000 more of it.
And where is the federal judiciary? It doesn’t have direct control of the FJC, but surely the chief justice could have put his foot down here. Why is an agency of his branch of government putting out plaintiff-aligned talking points on a website whose splash page includes the Thurgood Marshall Building? Why is Justice Kagan putting her name on it?
Climate litigation is a pernicious tax on regular Americans. It’s pure economic waste that gets passed on to consumers in the form of higher prices. Congress should stop funding it and get to the bottom of how the FJC started doing the legwork for climate plaintiffs.