A Letter To Rachel Maddow (With Apologies to Meg)

I really feel you're becoming the liberal Bill O'Reilly. I just don't appreciate the jumping on conservatives just because they're conservatives. If there is something specific that they are espousing and we, or you, or I, find it is despicable, jump on them for that belief, not just because they're conservative. That's what O'Reilly does. That's what Hannity does. That's what the blonde bimbi on Fox do.

In the third episode of "The West Wing" President Bartlett is making a speech. I dislike the discontinuity (just like it bothers me that Andy and Barney were cousins on their first episode but never again, but that's a rant for later), since as an economics student I don't know where he would have had a civil procedure professor, but in his speech he said:

"I had a civil procedure professor who said once...'When the law is on your side, argue the law; and when the facts are on your side, argue the facts...When you don't have the law on your side, when you don't have the facts on your side, bang your fist on the defense table as loud as you can.' Well, we've got the law on our side now, and we've got the facts on our side now..."

O'Reilly, et al bang their fists on the table. We've got the facts on our side, and we're getting the laws on our side, so Rachel, you've got to get your facts right, and you've got to do a little research and reflection on them. Unlike what you did last night.

In trying to do a gotcha thing with Scalia's quotes, you apparently didn't read the quotes, or understand them. You had me squirming, as apparently was Nina Totenberg, as you went on and on about Scalia's apple and Sotomayor's orange.

Scalia said that laws are made at the district court level. Sotomayor said it is done at the appellate level. There's a difference, all courts are not the same.

Scalia's point, and I disagree and will explain later, is that laws are "made" at the district court level, which is why you need so called strict constructionists at the higher levels to overturn them. Sotomayor's point, to which I disagree somewhat, is that those laws are not "made" at the district level, but at the higher levels. There's a difference.

I disagree with both of these legal scholars. Laws are made by the legislative branches, at all levels. However, as most of the legislators are not what we would call legal scholars, their attempts to enact laws may be in opposition to a previous law or precedent. More often, a party who is being impacted by the legislation will develop an interpretation that the new law is in violation of an existing law. These parties are rarely considered strict constructionists.

When this happens an action is taken, typically in a district court. This is where I find the quack Scalia to be wrong. Rarely is a decision made at this level where the district court judge will make a ruling that changes the new law. And even if he or she does, it rarely stops there. So I believe that Scalia is wrong in this interpretation.

Scalia's comments were made to rally the right against so called activist judges. Sotomayor's comments, which are more accurate in that changes to laws are more often made in the higher court, was to a group of law clerks. Her aim was to tell them that the more interesting clerk work is done at the higher levels, as it more often has more impact.

But laws are not made at any judicial level. Whether or not enacted laws are operable is determined in courts. And this often upsets people, as the judicial interpretation is different than their own. And those making those decisions are then labeled as activist judges. Not because they make an interpretation, all judges do that, but because they make one that somebody doesn't agree with.

My point is that facts are unique, words are special, they are important. In your occupation you need to be much more careful. Context is important, quotes cannot be paraphrased, nuance weighs in.

By the way, love your show.

PS to my dear friend Meg:

I know this screed will upset you, as you're a big fan. So am I. But to her this stuff is just a job. But its impact involves my life, my liberty, etc. I'm just saying what Phil Esterhaus would say, "Let's be careful out there."