updated 3/28/2013 10:30:04 AM ET 2013-03-28T14:30:04

THE RACHEL MADDOW SHOW
March 26, 2013

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

Guests: Kamala Harris, Kenji Yoshino, Tommy Sowers


RACHEL MADDOW, HOST: Good evening, Alex. Thank you very much.

And thanks to you at home for staying with us this hour.

The first thing you need to know about arguing a case before the
United States Supreme Court is that the justices of the United States
Supreme Court, really do not care about whatever it is you are planning on
saying to them.

(BEGIN AUDIO CLIP)

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: We`ll hear argument
in this morning in Case 12-144, Hollingsworth versus Perry.

Mr. Cooper?

CHARLES COOPER: Thank you, Mr. Chief Justice and may it please the
court: New York`s highest court in a case similar to this one, remarked
that until quite recently, it was an accepted truth for almost everyone who
ever lived in any society in which marriage existed --

ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here.
Maybe it would best if you could begin with the standing issue.

(END VIDEO CLIP)

MADDOW: Ah, humility. First lesson today is humility. The lawyer
for the anti-gay rights side of the case was allowed to basically gesture
at his first citation to teeter on the precipice of his first dependent
clause when, bam! This is not your house, sir. This is the justices`
house and they apparently have business to attend to in this case that
doesn`t afford time for your little essays.

The case today was, of course, the first of two big gay marriage cases
the court is hearing this term. The next is going to be heard tomorrow.

People lined up overnight in the snow to get into the courtroom to
hear these arguments today. People even paid other people to stand in line
for them if they did not want to brave the elements themselves and they had
spare cash.

When everybody did get in this morning and things got going inside the
courtroom at 10:00 a.m., it was clear whatever you thought of the caliber
of the lawyers arguing the two sides of the case -- honestly, the people to
listen to were the justices themselves. In part because that tips their
hand about how they might vote, but also because they barely let the
lawyers get a word in edgewise, on both sides.

(BEGIN AUDIO CLIP)

ROBERTS: Mr. Olson?

THEODORE OLSON: Thank you, Mr. Chief Justice, and may it please the
court: I know that you will want me to spend a moment or two addressing the
standing question. But before I do that, I thought that it would be
important for this court to have Proposition 8 put in context what, it
does. It walls-off gay and lesbians from marriage, the most important
relation in life, according to this court, thus stigmatizing a class of
Californians based upon their status and labeling their most cherished
relationships as second rate, different, unequal, and not OK.

ROBERTS: Mr. Olson, I cut off your friend before he could get into
the merits, so I think it`s only fair --

OLSON: I was trying to avoid that, Your Honor.

ROBERTS: I know that.

(LAUGHTER)

ROBERTS: I think it`s only fair to treat you the same. Perhaps you
could address your jurisdictional argument?

(END AUDIO CLIP)

MADDOW: The lawyers on both sides today, both trying to start with
the big picture, with the implications of today`s case, should gay people
in America be allowed to get married? Is it right or wrong? Is it
constitutional or unconstitutional for states to ban them from doing so?
They are both trying to start with the big picture, but the justices would
basically hear none of it. Well, they did hear some of it, and more on
that in a second.

But mostly the headline out of the day and the bulk of the time was
spent on something else that the justices wanted to talk about. They
wanted to talk about whether this is the right case, whether this case
about California`s gay marriage ban is the right type of case, asking the
right type of question by the right questioners, for the court to use this
case to make a national decision on same-sex marriage rights.

And the predictions from most court watchers are that the justices
seem to not think this is the right kind of case.

Now, if those predictions are right and nobody knows if they will be.
Remember when CNN declared health reform was dead? Yes. There`s no need
to jump the gun with the predictions. We will have a decision in due time.

But if -- if -- the predictions are correct that a majority of the
court does not want to make this case the basis of a ruling with national
implications for banning same-sex marriage, the most likely other income
(ph) could be that lower court ruling in this case would be allowed to
stand in effect. That lower court ruling struck down California`s gay
marriage ban.

So, if that happened, gay marriage would be unbanned in California and
couples there would have the same rights to marry as couples in Iowa,
Massachusetts, D.C. and the seven other states that have equal marriage
rights. That would mean that no state that bans gay marriage now would
have the ban overturned. It would mean no state that would allow gay
marriage would have that overturned.

It would also mean that no states that recognize civil unions but not
gay marriage now would forcibly have those civil unions converted to
marriage either. That seems like maybe it could be the most likely outcome
of today`s case. But honestly, who knows?

Ted Olson, the lawyer, was asked after the arguments today what he
thinks the court is going to do, having stood there, toe to toe with
justices and talking to them an hour. He was asked what he thinks the
justices are going to do, and his answer was, and I quote, "No idea."

But we did get to hear the justices at lengths today, on not just on
procedural issues, but also the issue of gay marriage and gay civil rights
more broadly. What they said was not only fascinating, but it may have
bigger implications for the other half of this issue, which is going to be
heard tomorrow.

Tomorrow, it isn`t a single state`s ban on gay marriage that`s up for
review like it was today. Tomorrow, the arguments are about a federal law,
the Bill Clinton era Defense of Marriage Act, DOMA, which says that even
though a marriage in any one state is a marriage everywhere in the U.S.,
for straight people, marriages of gay couples are not guaranteed
recognition outside of the state where they got married, nor can those
marriages be recognized federally. That`s what DOMA is.

And knowing the fight coming down the pike tomorrow, that made
exchanges like this one I want to play for you between Chief Justice John
Roberts and the former Republican solicitor general, Ted Olson, that made
this exchange really interesting.

(BEGIN AUDIO CLIP)

ROBERTS: So, it`s just -- it`s just about the label in this case.

OLSON: The label is --

ROBERTS: Same-sex couples have every other right, it`s just about the
label.

OLSON: The label "marriage" means something, even our opponents --

ROBERTS: Sure. If you tell -- if you tell a child that somebody has
to be their friend, I suppose you can force the child to say this is my
friend, but it changes the definition of what it means to be a friend. And
that`s it seems to me what supporters of Proposition 8 are saying here.
You`re change -- all you`re interested is the label and you insist on
changing the definition of the label.

OLSON: It is like you were to say you can vote, you can travel, but
you may not be a citizen. There are certain labels in this country that
are critical. You could have said in the Loving case, what -- you can`t
get married, but you can have an interracial union. Everyone would know
that was wrong.

(END AUDIO CLIP)

MADDOW: John Roberts and Ted Olson arguing about whether this
"marriage" label means something, or if you can have first-class
citizenship while the state still bans you from having that label, that one
thing.

If you wanted to know today if there was any good old fashioned, fact-
free, homophobic ignorance on display in the court -- yes, that did arrive
today on the wings of a dove named Justice Antonin Scalia.

Justice Scalia starts here trying quite overtly to help out the lawyer
who is arguing the anti-gay rights side. He starts out trying to help the
lawyer and goes right off the cliff.

(BEGIN AUDIO CLIP)

JUSTICE ANTONIN SCALIA, U.S. SUPREME COURT: Mr. Cooper, let me -- let
me give you one concrete thing. I don`t know why don`t you mention some
concrete things. If you redefine marriage to include same-sex couples, you
must -- you must permit adoption by same-sex couples and there`s -- there`s
considerable disagreement among sociologists as to what the consequences of
raising a child in a single-sex family, whether that is harmful to the
child or not. Some states do not -- do not permit adoption by same-sex
couples for that reason.

JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: California -- no,
California does.

SCALIA: Do you know the answer to that, whether it -- whether it
harms or helps the child?

COOPER: No, Your Honor. And there`s -- there`s --

SCALIA: But that`s a possible deleterious effect, isn`t it? They are
arguing for a nationwide rule which applies to states other than
California, that every state must allow marriage by same-sex couples. And
so, even though states that believe it is harmful -- and I take no position
on whether it`s harmful or not, but it is certainly true that there`s no
scientific answer to that question at this point in time.

COOPER: And that, Your Honor, is the point I`m trying to make.

(END AUDIO CLIP)

MADDOW: That actually was a point that lawyer had not been trying to
make at all before Justice Scalia decided he was going to help him out by
handing him that one, that fact-free assertion about the social science on
kids with gay parents that, in fact, is not at all borne out by the actual
social science.

Hearing Justice Scalia go there is sort of to be expected of him at
this point.

What was less expected and therefore more interesting was hearing
Justice Anthony Kennedy, the swing vote, right? Justice Kennedy, right
after that happened, just a few moments later, he interjected himself,
going out of his way to kind of smack Justice Scalia`s argument out of the
water.

(BEGIN AUDIO CLIP)

JUSTICE ANTHONY KENNEDY, U.S. SUPREME COURT: On the other hand there,
is an immediate legal injury or legal -- what could be a legal injury, and
that`s the voice of these children. There are some 40,000 children in
California, according to the Red Brief, that live with same-sex parents.
And they want their parents to have full recognition and full status. The
voice of those children is important in this case, don`t you think?

(END AUDIO CLIP)

MADDOW: Everything Justice Anthony Kennedy says in most cases, but
also in a case like this, is watched very, very closely, because Justice
Kennedy is often seen as the pivot point, the swing justice between the
court`s conservatives and the court`s liberals. So, we do have some
experts on deck tonight to help us out with what all of this means.

But before we get to them, because of the importance of Justice
Kennedy, I want to play one more moment of the case today. This is a
moment where Justice Kennedy, again, jumps in and a time when it seemed
like he didn`t have to, but he jumped into the middle of a point that was
in progress between the more progressive justice, Elena Kagan, Obama
nominee, right? It`s between Elena Kagan and the lawyer for the anti-gay
rights side.

So, they are having a little tete-a-tete about something. You`ll hear
Justice Kagan. But then listen to how Justice Kennedy jumps in.

(BEGIN AUDIO CLIP)

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: What harm do you see
happening and when and how and -- what harm to the institution of marriage
or to opposite-sex couples, how does this cause and effect work?

COOPER: Once again, I would -- I would reiterate that we don`t
believe that`s the correct legal question before the court, and that the
correct question is whether or not redefining marriage to include same-sex
couples would advance the interests of marriage as a --

KENNEDY: Well, then are you conceding the point that there is no harm
or denigration to opposite sex marriage couples? Are you conceding that?

COOPER: No, Your Honor, no. I`m not conceding that.

KENNEDY: That seems to me that you should have to address Justice
Kagan`s question.

COOPER: Thank you, Justice Kennedy.

(END AUDIO CLIP)

MADDOW: You should have to answer the question then.

Reading the justice`s intentions is like reading tea leaves. It`s
fun, but it tells you more about the reader than the readee.

From the dominant focus of the arguments today, we know that justices
care very much about how this case got to the court -- specifically the
decision of the California governor and the California state attorney
general to not defend Prop 8 in court. That is what they were focused on
today.

And joining us right now, live, the attorney general of the state of
California, Kamala Harris.

Attorney General Harris, thank you so much for being with us tonight.
It`s a real pleasure.

KAMALA HARRIS (D), CALIFORNIA ATTORNEY GENERAL: Glad to be with you.
Thank you.

MADDOW: So, Prop 8 passed in California in 2008. As I understand it,
when you won statewide office a couple of years after that, you said that
if you were elected, you would not defend that ban in court. Why did you
make that decision? And how do you think it`s playing out?

HARRIS: You are exactly right. I did, and we should also note that
my opponent said he would defend Prop 8 and my opponent was not elected.
And the reason I said that and the reason I have refused to defend Prop 8
is one simple reason. It`s unconstitutional. And it`s actually been found
by a court to be unconstitutional.

And, frankly, Rachel, as the daughter of parents who are active in the
civil rights movement, I refuse to stand in the doorway of the wedding
chapel blocking same-sex couple`s ability to marry.

MADDOW: What do you think the practical effect is going to be of the
justices focusing so intently on the standing issue, on that question you
not defending this case, you not defending Prop 8, but instead people who
supported the initiative, who weren`t necessarily employees of the state
taking it up instead of you? How do you think that`s going to play out?

HARRIS: Well, Article III of the Constitution requires if someone
goes before the United States Supreme Court and take a position, they have
to have some direct stake in the outcome, and our position all along has
been Mr. Hollingsworth has no direct stake in the outcome, and, in fact,
his life will be impacted in no way by Ms. Perry`s ability to marry her
partner of 16 years with whom she shares a child.

So, on the issue of standing, we I think make the very obvious point,
if you have nothing in at stake in the outcome of this, you need to sit
down.

The other piece of it is that when we look at the impact to so many
people, we are talking about an issue that is a fundamental right. The
United States Supreme Court, since the 1880s, Rachel, 14 times, has
described meaning as a fundamental right. So, we can have a conversation
that is about freedom to marry, but I think we really also must have this
conversation about deprivation of fundamental rights and what are we as a
society going to do about that?

And that`s why I am troubled by the conversation that suggests we
should wait. We should not wait when people are being deprived of their
fundamental rights. That`s why we could not wait when the Lovings wanted
to get married in Virginia. There has to be something about a civil
society that says that we`re not going to wait for the minority to be
comfortable with the majority and the full benefit of fundamental rights.
Rights that we outline a long time ago -- the rights to liberty, and
freedom and equality.

MADDOW: When you look back at that vote in 2008 that brought
Proposition 8 around in the first place, it was such a national surprise on
a night when Barack Obama was elected and so many Democrats were elected in
the both the House and Senate to see California -- California of all states
passing that constitutional amendment.

HARRIS: Yes.

MADDOW: I guess two questions. One, should it have been on the
ballot in the first place? If it were again, how do you think the vote
would go now?

HARRIS: Well, I can tell you today, 61 percent of Californians are in
favor of same-sex marriage, as are the majority of Americans and as are the
majority of Catholics in this country, the former president of the United
States, heads of Fortune 500 companies, you know, 100 of the top thought
leaders in the Republican Party, athletes.

The world has changed and I think that what is clear is that were the
vote to be taken today in California, I am sure Proposition 8 would not
pass.

But there is something fundamental also about allowing people to
register their vote and to vote as they will. But right now, in
California, 61 percent are in favor of same-sex marriage and for a number
of obvious reasons that have everything to do with just very fundamental
principles, again, of liberty, and freedom, and equality.

MADDOW: Kamala Harris, the attorney general of the state of
California, who is not officially part of the case today, but by virtue of
that, ended up being very much the focus of discussion all day, even as
justices on both sides called you he, as if you were a hypothetical person.

HARRIS: You know what? I`ll tell you something.

I think that`s just further example of people needing to see that
times have changed and actually the first woman has been elected attorney
general of California.

MADDOW: I felt for you. As somebody who gets mistaken for a boy when
people can see me, I felt for you knowing that people were thinking you
were a man simply because of your job title. It was an amazing thing.

Kamala Harris, congratulations, thanks very much.

HARRIS: Thank you, thank you.

MADDOW: Appreciate it.

All right. A huge news day. We`ve got much more on the Supreme Court
and same-sex marriage. We`ve more "are you kidding me?" news out of the
high plains today.

And, on a totally different story, we`ve got somebody here for the
interview later on tonight who we have been trying to get on this show for
months. It`s a big story and that`s ahead.

(COMMERCIAL BREAK)

MADDOW: OK. One of the dependable things that happens when a policy
debate works around to procreation, to the issue of having babies, or not
having babies, or -- in particular, the question of how babies are made,
one of the dependable things about those policy debates, is that at some
point in the debate, somebody will get confused.

We saw this, for example, in the debate over health insurance
companies covering prescriptions for contraception. A man on conservative
talk radio demanding to know just how many of these birth control pills do
you girls need? How much sex are you having?

It`s kind of an awkward moment for the country, right, when you had to
explain, it`s not like one pill per date, sir. You just take -- oh, never
mind. Read a junior high biology textbook, right, and not one from Texas.

It`s an awkward moment in the country when things like that happen but
they happen all the time. And one of those moments happened at the Supreme
Court today. A not understanding the biology moment, wherein the justices
ended up discussing the procreative capacity of dead Senator Strom
Thurmond. Seriously. Watch.

(BEGIN AUDIO CLIP)

KAGAN: Suppose a state said that because we think that the focus of
marriage really should be on procreation, we are not going to give marriage
licenses anymore to any couple where both people are over the age of 55.
Would that be constitutional?

COOPER: No, your honor. It would not be constitutional.

KAGAN: Because that`s the same state interest, I would think, you
know. If you are over the age of 55, you don`t help us serve the
government`s interest in regulating procreation through marriage. So why
is that different?

COOPER: Your honor, even with respect to couples over the age of 55,
it is very rare that both couples -- both parties to the couple are
infertile, and the traditional --

KAGAN: No, really, because, if a couple -- I can just assure you, if
both the woman and the man are over the age of 55, there are not a lot of
children coming out of that marriage.

(LAUGHTER)

COOPER: Your Honor, society`s -- society`s interest in responsible
procreation isn`t just with respect to the procreative capacities of the
couple itself. The marital norm, which imposes the obligation of fidelity
and monogamy, Your Honor, advances the interests in responsible
procreation, by making more likely, that neither party, including the
fertile party to that --

KAGAN: Actually, I`m not even --

SCALIA: I suppose we could have a questionnaire at the marriage desk
when people come in to get the marriage. Are you fertile or are you not
fertile? I suspect this court would hold that to be an unconstitutional
invasion of privacy, don`t you think?

KAGAN: I just asked about age. I didn`t ask about anything else.
That`s not an -- we ask about people`s age all the time.

COOPER: Your Honor, and even asking about age, you would have to ask
if both parties are infertile. Again --

SCALIA: Strom Thurmond was not the chairman of the Senate Committee
when Justice Kagan was confirmed.

(LAUGHTER)

COOPER: Very few men -- very few men outlive their own fertility.
And so --

KAGAN: A couple where both people are over the age of 55 --

COOPER: I --

KAGAN: Where both people are over the age of 55.

COOPER: And, Your Honor, again, the marital norm which imposes upon
that couple the obligation of fidelity --

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: I`m sorry, where is that
--

ROBERTS: I`m sorry, maybe you can finish your answer to Justice
Kagan.

(END AUDIO CLIP)

MADDOW: I`m sorry. As female justices are struggling to explain
however awesome it may be for a man like Strom Thurmond to never outlive
his fertility, a woman in a heterosexual marriage over the age of 55 is not
likely to get pregnant with her husband or anybody else, even if her
husband is the picture of aged procreative vigor. You guys do understand
that, right?

The whole thing about two, both of them, the man and woman being over
55, it doesn`t matter how old Strom Thurmond was himself, are we clear
here? Gah! Sorry.

Joining us now is Kenji Yoshino, the Chief Justice Earl Warren
professor of constitutional law at NYU Law School. He was in the courtroom
today to hear the oral arguments in the Prop 8 case.

Professor Yoshino, thank you very much for being here tonight.

KENJI YOSHINO, NYU CONSTITUTIONAL LAW PROFESSOR: Thanks for having
me, Rachel.

MADDOW: That pained squall, where nobody realizes what she is talking
about makes me crazy. But it`s not the most important thing that happened
today.

What`s the most important thing that happened today? What we learned
about how these judges may likely rule on this case? Or was it learning
about how they feel about gay people and gay rights in general, in a way
that might apply to tomorrow`s case, too?

YOSHINO: Yes. So, I think both -- I think what we learned today was
that the extremes have been shaved off, and what we`re going to get is not
a zero state solution, or a 50-state solution, but somewhere in between,
probably just California.

I think, yesterday, we were talking about off-ramps, and I think the
Supreme Court signaled that it really wanted to take this off-ramp of no
standing, flipping to just California and I think that`s what we`ll end up
with, if I had to read the tea leaves, as you said.

That`s 11 percent of the country. So, that`s actually a really big
deal. So, I don`t want to minimize that but it`s an incremental solution.

But I think that we also learned something about what`s going to
happen tomorrow, because I think when the justices talk about the clip you
played about Kennedy, about kids, this whole, you know, protect your
children meme has been something that the right wing has used over and over
again. Protect your children used to be the Anita Bryant campaign.

MADDOW: Right. Protect our children from gay people.

YOSHINO: Exactly. So, protect our children from being molested by
gay people in the 1970s. And then during the Prop 8 campaign, it was
protect our children from being turned gay by gay school teachers or from
being taught about same-sex marriage the educational context, right?

So, when President Obama flipped or evolved last May, on the same-sex
marriage issue, he mentioned children of gay couples and he said, you know,
gay couples that I know are raising kids and mentioned children over and
over again. And I think that was a sign of a real turning point in this
debate where the combination of gays and children was no longer toxic.
And, in fact, "the protect our children" meme became an argument for same
sex marriage rather than against it.

So, I think the fact that Justice Kennedy is picking that up is
really, really important. We have to focus on Justice Kennedy here because
he is going to be the swing vote I think in both of these cases. I think
that he -- they might not be partisan 5-4s, but I think he`s going to be
the key vote.

So, I think that we go into tomorrow, it`s not only Justice Kennedy
has tipped his hand to being very pro-gay, very understanding of the lives
of gay people as he was in Romer and Lawrence cases in `96 and 2003. But
when we get to tomorrow, tomorrow is not just a gay rights case, it`s also
a state`s power case, right?

So, what are Justice Kennedy`s two favorite things? He`s kind of a
middle of the road conservative, right? It`s gay rights and states powers,
right? So, if you join the two things together, then you might have as
well have Julie Andrews like sing the oral argument for them because, you
know, he`s sold.

So, I think that tomorrow`s outcome is very bullish in the court
striking down the defense of marriage act.

MADDOW: Let me ask you about another meme that was raised repeatedly
today, particularly in a contentious exchange between Ted Olson and I
believe it was John Roberts. And I may be wrong about the justice there, I
read it instead of listened to most of it.

But it was on the issue of -- no. It was Justice Scalia, where
Justice Scalia was saying, at what point did it become unconstitutional to
deny marriage rights to same-sex couples? And Ted Olson answered with the
question and said, when did it become unconstitutional to deny that right
to interracial couples? And Justice Scalia responded by saying, don`t
answer my question with a question.

But that came up repeatedly, this idea that same logic that caused the
country to change its mind about whether or not it was kosher to tell
interracial couples that you can`t be married should apply to same-sex
couples as well.

How did you feel like that played out today? You saw it also
referenced by the attorney general of California just a moment ago on the
show.

YOSHINO: Yes, I thought he gave the right answer to it, but I wish
that he had cited precedent for it, which I think is a slam dunk for it.
It`s a case of called Rogers vs. Lodge from 1982 that says even if a system
of election was created with a nondiscriminatory reason, if it`s maintained
for discriminatory reason in the future, then that in itself can render it
unconstitutional.

So, here are the at-large election system way was not prejudicial to
African-Americans, but it was being maintained later on time in order to
ease out African-Americans from being elected in various districts. And
so, the Supreme Court said, you know, even if it wasn`t, you know,
unconstitutional in its origins, it was being maintained through
unconstitutional reasons.

MADDOW: So, marriage did not evolve as an institution, in a way that
was designed to harm gay people, but it`s being maintained in a way that
does harm gay people, and precedent says it should be seen as
unconstitutional.

YOSHINO: Exactly right.

MADDOW: OK.

YOSHINO: Yes.

MADDOW: I got it right. Excellent. That`s as close as I`m going to
get to law school.

Kenji Yoshino, Chief Justice Earl Warren professor of constitutional
law at NYU, you have not slept at all and I know that you`ve been back and
for to D.C. since we saw you. Thank you so much for being here.

YOSHINO: No problem. I think I talked about off-ramps a lot, because
I`ve been a lot off-ramps today, driving back and forth.

MADDOW: I`m glad you are you safe and back.

All right. A lot of urgent questions about the V.A. backlog, and
we`ve been asking them on this show for months. Tonight, we finally get to
ask those questions of somebody who can answer back.

It`s a big deal. That`s the interview tonight. That`s ahead.

(COMMERCIAL BREAK)

MADDOW: Last week, we had the largest number of guests ever at one
time on this show. And the number of guests in that segment happens to
reflect directly the level of the importance of the topic we discussed with
those vets. The group of veterans you met on the show last week are among
the many veterans and their families who are demanding a solution from
President Obama himself, if necessary, to fixing the frustrating backlog of
claims at the Veterans Administration.

The average wait time for a veterans claim just to be processed is
about nine months. Nine months. For some vets, try 19 months, 584, try
642 days, try 1,099 days.

Tonight, I am pleased to announce that, finally, somebody from the
V.A. has agreed to talk about this. V.A. Assistant Secretary Tommy Sowers
joins us next to talk about how his department plans to fix this mess.

(COMMERCIAL BREAK)

MADDOW: One of the stranger strategies that the United States took in
our long war in Vietnam was to wage war on the land itself. By the tens of
millions of gallons we sprayed herbicide on the land, to defoliate the
jungle, to deprive the guerillas fighters of cover, to kill crops, to try
to drive the Vietnamese people into the cities.

It`s the kind of policy, frankly, that militaries think of when they
think they are god, when they think they have accounted for all the
possible consequences of their actions. The United States had not
accounted for all of the consequences of that action, of their massive use
of Agent Orange and other herbicides in Vietnam. We didn`t even admit to
many of those consequences for 40 years, until October 2009 when a new
president and his new combat-wounded, Vietnam veteran secretary of veterans
affairs announced that Agent Orange-related illnesses in U.S. service
members would be presumed to be related to your time in the service if you
served in Vietnam.

Then, five months later, V.A. Secretary Eric Shinseki announced
further that illness associated with Gulf War illness from the first war in
Iraq would also be presumed to be related to your time in the service if
you served in that war.

The idea was to recognize the fact that Americans who served in those
wars got hurt in those wars in ways that had previously been dismissed as
not related to their time at the front.

To get those folks to care and disability benefits that they earned,
those two decisions brought hundreds of thousands of new claims for
disability benefits into the Veterans Administration. Now, at the same
time that was happening, under this new president, the U.S. was also
starting to wind down one of the longest wars in our history, the Iraq war.
Another war in which some of the signature injuries, in this case,
traumatic brain injury and post-traumatic stress, those injuries can be
less straight forward to diagnose and relate to your service than, say, a
bullet wound would be.

The same president is now winding down the longest war in our history,
which was fought simultaneously with the Iraq war, with many of the same
signature injuries, not 1 percent of our population that has been fighting
both of those wars for more than 10 years will all be coming home and
transitioning from soldiering to being veterans.

The story of how the backlog at the V.A. piled up so badly in terms of
veterans having to wait months or even years on their claims, that story
about how it all piled up is not hard to understand.

But no one saw this coming? When the Agent Orange claims were added
and the Gulf War illness claims were added and other classification groups
were added and the wars in Iraq and Afghanistan ground on for years and
then finally started to end, anybody could see all of those things would
have paperwork consequences in the form of more disability claims in the
V.A.

But the management of the paperwork has not kept pace with the changes
that cause the increases in paperwork. The V.A.`s own numbers shows wait
times are not getting better, it`s getting worse.

In 2009, it was 161 days. The next year, 165 days. The next year,
188 days. Last year, it was 262 days.

The universe of the problem they are dealing with is getting bigger by
design, by policy, by good policy, by their own policy. But the pace at
which they are dealing with the existing problem is not getting better, it
is getting worse.

And we keep hearing from the V.A., we got this. Really, for a decade
now we`ve been hearing that it`s all under control.

(BEGIN VIDEO CLIPS)

ANTHONY PRINCIPI, FORMER V.A. SECRETARY: We need to bring that
backlog of claims down.

R. JAMES NICHOLSON, FORMER V.A. SECRETARY: The V.A. has made
significant improvements to the claims decision making process, but clearly
more must be done.

JAMES PEAKE, FORMER V.A. SECRETARY: We will improve the timeliness
and accuracy of claims processing.

ALLISON HICKEY, V.A. UNDERSECRETARY FOR BENEFITS: We are implementing
a robust plan to fix the problem.

ERIC SHINSEKI, V.A. SECRETARY: We have a fix for this, we`re open for
business, and we will end the backlog in 2015.

(END VIDEO CLIPS)

MADDOW: That last remark from the current secretary of veterans
affairs, General Eric Shinseki, who for these past few years, has not
talked much to the national press. Maybe that interview on CNN this past
weekend shows that that is changing.

But I am, for one, delighted to be allowed talk to anyone from the
V.A. which has been next to impossible for us as a show as we have covered
this issue for years now.

The agency would not give us anybody to talk to about this, until
tonight.

Joining us tonight for the interview is Tommy Sowers. He`s assistant
secretary for public and intergovernmental affairs of the V.A. Prior to
being nominated to that position by the president and confirmed by the
Senate, Dr. Sowers was a major in the U.S. Army Special Forces. He served
two tours in the war Iraq.

Tommy, it is really, really nice to see you. And I say that not out
of politeness, I really am glad you are here. Thanks.

TAMMY SOWERS, VETERANS AFFAIRS ASSISTANT SECRETARY: It`s great to be
here. And I do want to just thank you for your focus on this issue. I
know you are a daughter of a veteran and I appreciate your focus on the
issues we care about.

MADDOW: I don`t want to look a gift horse in the mouth because I
finally got you here.

SOWERS: Sure.

MADDOW: But why has the V.A. kept a low profile and explained so
little what was going on, particularly to a national audience, as the
country has become increasingly worried about this problem?

SOWERS: Well, it`s a great question. And, look, the president and
Secretary Shinseki have made a historic commitment to our veterans. Over
the last few weeks, there has been a lot of talk about the backlog of
disability compensation claims.

And what we`re finding in our -- there are a number of veterans that
simply just don`t know that if they are an Iraq and Afghanistan veteran,
they have five years of cost-free health care. I`m one of those patients,
and not only do they have it, they`ve taken it.

This generation of vets has utilized V.A. health care at 56 percent.
That`s much higher than any other generation of vets. We`ve got to do a
better job of getting out there and educating about what these claims are
and about what our takedown is.

And I think you are seeing some of that this week.

MADDOW: Let`s say there`s a member of the military who just got back
from Afghanistan. He`s leaving the military next week, he`s becoming a
veteran, he believes he has PTSD or maybe he`s been diagnosed with PTSD and
the military health care system. He`s going to file a disability claim
with your agency. That`s not for I need an appointment to get care, that
is I can`t work because of my PTSD and I need to be paid disability
benefits to compensate for the fact that I cannot work.

What -- what will the process be like for that veteran right now?
What should that veteran expect right now in terms of timing for the
paperwork?

SOWERS: Well, first off, again, when it comes to actual treatment,
there is immediate assistance out there. So, we`ve got a veterans crisis
line, 1-800-273-TALK, and over 700,000 veterans, active duty service
members and their families have called this number. And they can walk into
any of our 1,300 points of care.

Here in New York, there`s five vet centers, and this is for veterans,
their families to help with readjustment.

So, I want to make sure that that`s clear, is that they can get the
help that they need.

Now, when it comes to filing disability claims, they can go online and
file it electronically. They can go with a veterans service organization
who will help walk them through that claim.

But the challenges, we`re still receiving about 97 percent of our
claims like this. These big stacks of paper, and as long as we`re
receiving this paper, it`s going to be a challenge in order to keep up with
it. I don`t know the last time you looked up something in an encyclopedia,
but it`s been a long time since we did that. But that`s what we`ve got at
a lot of the claims offices.

The great news is, is that this the key year of action. This is the
year that we`re transitioning from this paper-based system into an
electronic system. Right now, we`ve got about 56 offices, about 25 of them
have transitioned to this, and we`re seeing a marked decrease in the amount
of time it takes to process a claim.

And it`s just simple. Imagine looking up and trying to find a key
piece of evidence in this, versus just typing in back, post-traumatic
stress, into a web-based service and that`s the difference that`s happening
this year.

MADDOW: Right now, any veteran who is filing for disability claims
tonight or tomorrow, are they filing electronically? Or some places still
filing paper?

SOWERS: The vast majority are still filing in paper. That`s the
challenge. And, you know, on some of your previous segments, you`ve asked,
V.A., what help do you need?

MADDOW: Yes.

SOWERS: It`s a great question.

Our budgets have increased. This president and the secretary have
fought for that, and they fought for increasing conditions. You mentioned
that, thank you for doing that in the intro.

But what we need to do is partner with both the veterans and the
veterans service organizations, to make sure they know about fully
developed claims, which is 95 percent of the claims we get, we get a few
pieces of paper and then they say, V.A., go find the rest of the evidence,
private medical records, DOD records. Only about 5 percent are filed with
all the paperwork that we need. It`s like getting your taxes with
everything that you need to get them filed. We need to increase that
number dramatically.

And then we`ve got about 1 million servicemen and women getting out of
the military in the next four years. They`re going to come back. A lot of
them will go to school, the education on what the post-9/11 G.I. bill means
is very high. But a lot of people don`t understand the disability claims
process. So, we need those first sergeants, those junior officers that are
out there, that are going to sit with that private, that specialist and
say, what are going to do next? Part of that conversation needs to be,
this is how you file your disability claim.

MADDOW: The frustrating thing, though, is that the level of
complexity that needs to be filed with the V.A. is determined by the V.A.,
and so, if people are turning in stuff that isn`t cogent in terms of what
you need to be able to file the claim, and that`s true 97 percent of the
time, that doesn`t apply that there is a problem with the 97 percent of the
people applying. That implies there`s a problem with what you`re asking of
people? If only 3 percent are doing it right, then you`re asking for
something that`s not doable.

So, isn`t part of the process that you guys are asking for something
that`s unreasonable?

SOWERS: Well, we just -- we just came online in terms of the ability
to file a claim electronically. And if there`s someone out there wondering
about this, they can look up e-benefits or fully developed claim and those
are the two methods that says if you`re going to file your claim, this is
how you give us all the information that we need to rate it, and judge it
as quickly as possible.

MADDOW: In 2010, as recently as 2010, the undersecretary of the V.A.
for benefits, for VBA told the Senate Veterans Committee that the -- the
back of the backlog was being broken. That was three years ago and things
have gotten worse since then.

General Shinseki insists and General Hickey insists that this is going
to be done by 2015. And I feel like my increasing urgency with covering
this so much is that I have stop believing them, because I`m not seeing
progress toward anything that looks like it`s going to be better next year,
let alone the year after.

And I realize the transition to electronic records feels like it`s
going to wok for you guys, but if it`s not working on the ground in big
pilot programs that we can see that veterans are saying it`s working for
me, it`s really hard to believe it`s moving. Why shouldn`t there be some
kind of presidential commission, or some external force, sort of brought in
to ride herd of the V.A. to make sure it happens?

SOWERS: Well, when I came into this position, I`ve been here about
seven months. I heard all about the backlog and I filed a claim, I`ve gone
through the process, it took about six months, which is the -- about the
historical average over the last ten years. So I wanted to see it. So I
went to one of these offices.

And this was back in September, the first office that I saw. You saw
piles like this. All over, and you featured some of these, and this
cumbersome process, and I saw the electronics system there, and it looked
sort of like Windows 3.1.

And then, I went to Winston-Salem in January, the same office you
profiled, the same office that was, you know, because sagging because of
the weight of the claims. The claims have not just been moved, they have
been scanned.

We`ve moved very quickly into this web-based, online service. I
invite you to come see it. Come see, this is the key year of transition of
old offices that are still dealing with 19th century system and new offices
that deal with the 21st century.

MADDOW: I will take you up on that, provided you let me ask questions
of anybody that I want to without a minder.

SOWERS: Done.

MADDOW: I would make that agreement with anybody in a foreign
country. I will make that agreement with you.

SOWERS: Done.

MADDOW: All right. It`s a deal.

SOWERS: Great.

MADDOW: Tommy Sowers, thank you so much.

SOWERS: Thank you.

MADDOW: You have a very hard job and I really appreciate you being
here.

SOWERS: Thank you.

MADDOW: All right. We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: OK. So far, Rob Portman is the only Republican senator to
come out for equal rights for gay people.

But on the Democratic side, check this out. As of today, all but 10
of 55 senators who caucus with the Democrats are on record in favor of
equality. The are 10 who aren`t. These are they: Bob Casey, Joe Manchin,
Kay Hagan, Bill Nelson, Heidi Heitkamp, Mary Landrieu, Tom Carper,
seriously? Tom Carper? Tim Johnson, Joe Donnelly, Mark Pryor. Those are
the 10 who aren`t in favor of same-sex marriage rights.

"Huffington Post" put together that list today and it`s a good thing
they time stamped it because it`s changing fast. In the past few days,
Senators Claire McCaskill, and Mark Warner, and Jay Rockefeller and Mark
Begich have all come out and said they do support equal rights.

And now, today, another one, the latest, big, burly, flat-top, seven-
fingered Montana farmer, Jon Tester, came out today and said he supports
equal marriage rights for same sex couples. Sometimes things change slow,
sometimes they change fast.

For fast change, see Montana on gay rights today. But also see North
Dakota next door for change of a different kind. That story is next.

(COMMERCIAL BREAK)

MADDOW: This is not a blue state broadcast you`re looking at here.
This is yesterday in Minot, North Dakota.

And in Minot, North Dakota, they weren`t alone. Pro-choice protesters
came out all over North Dakota yesterday, in Minot, and in the state
capital of Bismarck and in Grand Forks, and in Fargo, all urging the
governor to veto three new anti-abortion bills that passed through the
legislature and landed on his desk yesterday. The bills in the governor`s
desk included a ban on abortion at six weeks of pregnancy, which amounts to
essentially to a total ban, since that is before many women even know they
are pregnant.

Also, a Mississippi style TRAP law that consists of targeted
regulations specifically designed to shut down one remaining abortion
clinic in the state. Well, today, when the news hit that the governor of
North Dakota, Jack Dalrymple, had signed all of those bills, the "A.P."
says that lone remaining clinic in North Dakota started to receive a flood
of unsolicited donations.

They posted this on their Web site today, this notice in big bold
letters. Quote, "Abortion is still legal in the state of North Dakota,
despite the signing of some bills today by the governor. Red River Women`s
clinic is open, available for appointments and legally performing abortions
in the state of North Dakota.

The director of the last clinic spoke with us on last night`s show,
giving every indication she will fight to stay open. When Governor
Dalrymple signed that six-week-ban today, he obviously saw this fight
coming, saying the legislative assembly before it adjourns should
appropriate funds for a litigation fund available to the attorney general.

Spoiler alert here: North Dakota`s abortion ban will not survive a
court challenge, because in America, in this country, you cannot ban
abortion. But in North Dakota, Republicans are apparently happy to turn on
the taxpayer faucet to prove that fact -- fiscal conservatism, Republican-
style 2013.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL."

Thanks for being with us.


END

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