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'The Rachel Maddow Show' for Tuesday, January 12th, 2010

Read the transcript to the Tuesday show

Guests: Michael Beschloss, Dr. David Applegate, David Boies, Ted Olson


RACHEL MADDOW, HOST:  Yes, the computer volume in this room right now is turned up to stun.  I will see if I can do something about that.  But I appreciate it, in the meantime, Keith.  Thank you.

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


Sarah Palin debuts as a FOX News contributor.  That didn‘t take long.  Presidential historian Michael Beschloss will be joining us here to discuss the achievements of President Obama‘s first year.

John McCain again and still defends picking Sarah Palin to be the second most powerful person in the country—even after all we‘ve learned.

And, as Keith said, legal superstars Ted Olson and David Boies are here live to talk about their unlikely alliance in the battle for gay marriage.

We have a very packed show tonight.

But we are beginning with some breaking news.  The largest earthquake ever recorded in the region has hit if the nation of Haiti. It‘s a quake registering 7.0 and it struck just before 5:00 p.m. Eastern Time.  It struck about 10 miles southwest of the capital of Haiti, Port-au-Prince.

For an incident like this, Port-au-Prince is a very dangerous combination of highly populated, they‘re about 2 million people in the city, and full of poorly constructed buildings.  Although it has been difficult to get details so far already, we‘re hearing reports of collapsed buildings and casualties, including a hospital and perhaps even the presidential palace.

One U.S. government official is telling “The New York Times” that he or she saw a number of whole houses that had fallen into a ravine.  Phone land lines are, in many cases, down.

Since the quake hit, there have been at least six aftershocks, the worst reportedly measuring 5.5, and 5.9 -- which are themselves pretty big quakes in their own right.

The U.S. military says the U.S. Southern Command is standing by, ready to offer humanitarian support.  How much support will be needed is still unknown at this time.

We‘ve just received notice from the State Department, that the State Department Operations Center has set up a phone number, a toll-free phone number for Americans who are seeking information about their own family members in Haiti.  It‘s a toll-free number.  It‘s 888-407-4747.  They are saying that because they are receiving heavy call volumes, some callers may initially receive a recording.

Our embassy, I‘m told, is still in the early stages of contacting American citizens through what they called the Wharton (ph) Network.  Communications are considered to be difficult still within Haiti at this time.

But, again, if you are an American who is seeking information about family members that you have in Haiti in the wake of this quake, again, the State Department has set up a toll-free number.  It is 888-407-4747.

One of the early pieces of information we received about this quake was that a tsunami warning was initially issued.  That tsunami warning has since been cancelled.

Joining us now to try to understand the magnitude of this quake and its impact is the senior science adviser for earthquake and geologic hazards at the U.S. Geological Survey, Dr. David Applegate.

Dr. Applegate, I really appreciate your time.  Thank you for joining us.


MADDOW:  Do we have any idea at this hour of what sort of casualty numbers we‘re looking at.  Any idea how many people have been killed or even injured by today‘s quake?

APPLEGATE:  Well, as typical in these kinds of situations, as you said, communications are out.  A lot of networks are down.  So, casualty estimates are coming in very slowly.

One of the things that we do is look at the number of people who‘ve been exposed to very strong shaking.  It gives us at least an initial picture from a humanitarian standpoint.  We estimate somewhere on the order of nearly half a million people exposed to extreme ground shaking.  So, we‘re going to expect casualties, I would think, at least in the hundreds, quite possibly in the thousands.

MADDOW:  I have read tonight that this is—this earthquake was the largest earthquake to hit this region since we began recording such things, 7.0.  Can you give us some context for understanding the size of a 7.0 quake?

APPLEGATE:  Sure.  The 7.0 quake that folks are most familiar with was the Loma Prieta earthquake in 1989 that struck the Bay Area, stopped the World Series.  To contrast, though, that earthquake struck well south of the Bay in an area that was relatively unpopulated.  We saw all the damage that occurred at some distance.

Here‘s an earthquake of the same magnitude right underneath a very heavily populated area.  Moreover, a population that is nowhere near as earthquake-ready in terms of its construction as California.

MADDOW:  On that issue of construction, I mean, Haiti is, by far, the poorest country in the western hemisphere.  It has been frequently battered by hurricanes, including a hurricane six years ago that killed 3,000 people in Haiti.

How big a factor are construction practices in terms of what we‘re likely to see for casualties?  Obviously, if a quake is big enough, it can do anything it wants to.  But what you know in—what we know about construction standards in Port-au-Prince in Haiti, is that likely to be a major factor determining how many people die in this quake?

APPLEGATE:  Actually, that‘s going to be huge.  The—you know, the saying is: earthquakes don‘t kill people, buildings kill people.

Certainly, just the images that we‘re seeing now, we‘re seeing the typical un-reinforced masonry and brick buildings that are the highest collapse hazard.  They‘re not designed to withstand earthquake shaking.  And unfortunately, a lot of those buildings, particularly the larger ones are the schools, hospitals, and other really critical facilities for dealing with a response and recovery phase.

We‘re also seeing images of secondary hazards, for example, landsliding.  There‘s a lot of topography in this area, a lot of heavy rainfall.  So, we‘re also going to be seeing a lot of damage associated with that.

MADDOW:  Dr. David Applegate is the senior science adviser for earthquake and geologic hazards at the U.S. Geological Survey—it‘s a great boon to us to have your expertise to share with our viewers tonight.  Thank you for your time.

APPLEGATE:  Certainly.

MADDOW:  I should also mention that the U.S. Agency for International Development, USAID, says they are sending disaster response teams to Haiti.  We‘ve just received word of that.  And, of course, as we said earlier, U.S.

Central Command is saying that the U.S. military is available to be sending

to be spending for humanitarian assistance to Haiti.  There are only about less than two dozen military personnel who are stationed in Haiti for any reason, but U.S. Southern Command says they are willing to deploy U.S.  military resources to help if that is required.


Earlier tonight, Secretary of State Hillary Clinton pledged U.S. aid to the earthquake victims in Haiti.


HILLARY CLINTON, SECRETARY OF STATE:  The United States is offering our full assistance to Haiti and others in the region.  We will be providing both civilian and military disaster relief and humanitarian assistance, and our prayers are with the people who have suffered, their families and their loved ones.


MADDOW:  Secretary Clinton speaking today, President Obama also released a statement saying, quote, “My thoughts and prayers go out to those who have been affected by this earthquake.  We are closely monitoring the situation, and we stand ready to assist the people of Haiti.”

We will, of course, continue to watch this story and keep you updated with new information as it comes in over the course of this next hour.

We turn now, though, to the next chapter in the career of the most famous Republican in America.  Yesterday, Sarah Palin, the former half-term governor of Alaska turned Republican vice presidential nominee, turned again announcing her latest gig is as a paid contributor to the FOX News Channel.

The announcement was yesterday, and today she got to work.


SARAH PALIN ®, FORMER ALASKA GOVERNOR:  There is an obvious disconnect between President Obama and the White House, what they are doing to our economy, and what they are doing in terms of not allowing Americans to feel as safe as we had felt, and people finally saying, you know, this is not the representative form of government that we thought that we had voted in.

After a year‘s time, people are saying, no, we want the White House.  We want President Obama to hear from us.  We want these common sense solutions with health care, with jobs, with the economy, with the war on terror to be implemented so we can get back on the right track.


MADDOW:  So we can get back on the right track.  We‘ll have much more on the Sarah Palin debut just in a couple of minutes coming up on the show.

In terms of the substance of her critique, it should be noted that a week from tomorrow is the one-year anniversary of President Obama‘s inauguration.  Republicans, including their new paid pundit-in-chief have already started to use the one-year mark of this new presidency as a way to try to spin it as a failure.

Over the course of the next week, we‘ll be able to judge exactly how good Republicans are now at framing things for the mainstream press.  We‘ll be able to judge by what the president does and doesn‘t get credit for and look back at his first year.

Take, for example, one of the more significant news stories of today, the U.S. Federal Reserve announcing that it made a $52 billion profit—profit—in 2009.

Now, there‘s a number of ways to respond to a strange headline like this—one is to be outraged about it.  To blame the Obama administration for the Fed‘s socialistic intervention in the banking system.

Another way to look at it is to say, well, this big, confusing, politically unpopular thing that the government did with lots of taxpayer money worked out OK in some ways.  We didn‘t have a second Great Depression.  We still have a banking system, which wasn‘t a given a year or so ago, and, by the way, we, taxpayers, just made $52 billion in profit for the Federal Reserve‘s part in this.

It may be hard to accept when you‘re here, but financial observers overseas are certainly taking note.  The BBC reporting today, quote, “The figures suggest that U.S. taxpayers have so far gained money from the U.S.  government‘s action in propping up the system.”

The news out of the Fed today is sort of a microcosm of what‘s happened with the economy during President Obama‘s first year.

Yes, unemployment is still a huge problem.  But if you want to talk jobs, here‘s the context.  Here‘s what job losses looked like during the last year or so of the Bush administration, 3.6 million jobs lost in 13 months.

Now, this is what‘s happened since President Obama took office.  We‘re still losing jobs, but we‘re doing so at much—a much, much slower rate.  Job losses are heading in the right direction.

Steve Benen first put this graph raft together at “Washington Monthly.”  We‘ve decided to keep it posted in our newsroom ever since our executive producer christened it the “bikini graph.”

You want to see another bikini graph?  Take a look at the stock market, specifically the Dow.  Here‘s what President Obama inherited from the Bush administration, and here‘s what‘s happened during President Obama‘s first year.

For all the unpopularity of the bailouts and the scare the tea partiers actions of the Fed and the Treasury Department, for all of the demagoguing and freaking out about the economy, the numbers look OK.  They at least seem to have gotten a lot better under Mr. Obama.  He seems to have turned things around.

And in terms of legislative accomplishments, whether or not you like the policies this president has pursued, consider what moved from his to-do list to the “done” list in this president‘s first year.  Not his first term, but just his first year.  Less than a month after taking office, President Obama got a massive $787 billion stimulus package passed.

Every mainstream economist in America said the stimulus worked to prevent a much deeper downturn.  Even the right wing think-tank, the American Enterprise Institute, last week, put out a report saying the stimulus worked.  Even Mark Zandi, one of John McCain‘s economic advisers during the campaign against Obama, has been willing to admit publicly that the stimulus worked.

Right around the same time, the president signed the Lilly Ledbetter Fair Pay Act, allowing facing salary discrimination to seek justice in the courts.

In March, he lifted an 8-year-old ban on embryonic stem cell research.

In June, the House passed potentially transformative climate change legislation that Obama made one of the centerpieces of his campaign.

In August, Congress confirmed President Obama‘s Supreme Court nominee, Sonia Sotomayor, the first Hispanic on the Supreme Court.

Waiting on deck is what promises to be the most comprehensive package of financial regulation reforms since the days of FDR.

And then, of course, there‘s the granddaddy of them all, health reform.  President Obama is on the verge of achieving something that‘s eluded nearly every Democratic president who has taken it up before him.

Jacob Weisberg writing in “Slate” late last year said of health reform, quote, “For the federal government to take responsibility for health coverage will be a transformation of the American social contract and the single biggest change in government‘s role since the New Deal.  If Obama governs for four or eight years and accomplishes nothing else, he may be judged the most consequential domestic president since LBJ.”

And speaking of LBJ, every year, “Congressional Quarterly” tracks what they call the presidential success rate, how frequently presidents get their wish from Congress when they clearly express what is they want Congress to do.  The gold standard of recent president has been the legendary congressional arm twister, Lyndon Johnson.

On congressional votes in which LBJ made his preference for the outcome clear, Congress did what he wanted 93 percent of the time.  That was in 1965.

This past year, Barack Obama has topped that, he‘s broken the record.  In 2009, on votes where President Obama took a clear position, Congress voted his way 96.7 percent of the time.  That‘s a record.

“Congressional Quarterly” sums up their findings by saying, quote, “Barack Obama‘s success rate was the highest not only for the first year of any presidency, but for any year since ‘Congressional Quarterly‘ began the study 56 years ago.”

Now, this president notably has picked his battles.  He has deferred action on promises like repealing “don‘t ask, don‘t tell” and closing Guantanamo.  The fate of Afghanistan and even Iraq, the American role in those places, those are open questions.  Fighting terrorism is a treadmill that no one expects anyone to have the luxury of getting off any time soon.

But as we close in on year one of the Obama presidency, on the precipice of health reform, after 60 years of trying, having prevented the second Great Depression with the politically unpopular but frankly effective bailouts and stimulus, with the first Hispanic justice nominee in place on the Supreme Court—just watch the reception for the Republican spin in this next week about this president‘s first year.  Just watch the reception to the president‘s—to the Republican spin that this president has been such a disappointment.  Just watch.

Joining us now is NBC News presidential historian Michael Beschloss.

Mr. Beschloss, it is great to see you.  Thanks for being here.


MADDOW:  Great, thanks.

Empirically, whether or not you like Obama‘s policies, but from a pure quantitative perspective in terms of what this president has done—how does President Obama‘s first year stack up against previous presidencies?

BESCHLOSS:  Well, he is the equal of Franklin Roosevelt in his first year, LBJ in 1965 or Ronald Reagan in 1981.  You know, Obama last year, or two years ago during the campaign, kept on saying, “I want to be a transforming president,” like Roosevelt, like Johnson, like Reagan.  And the breadth of the kind of things he has done—you‘re absolutely right to talk about them—I think suggests that that‘s what he‘s going to be.

MADDOW:  In terms of the challenges that he faced, the president talked about, has he been—almost joked about the fact that nobody could have ever guessed that Iraq would almost be considered a backburner issue for this presidency.

BESCHLOSS:  Absolutely.

MADDOW:  That he‘d be dealing with the economy.  Can you give us some historical context for what challenges he was handed?

BESCHLOSS:  It‘s almost unique in the last century.  When FDR came in in 1933, we were in a terrible Great Depression, but in terms of foreign policy, the world was fairly quiet.  And Roosevelt could spend his first term basically concentrating on the economy.

If you look at a case, for instance, like LBJ coming in in 1963, had to deal with the death of John Kennedy.  But, again, the world was relatively quiet.  He was able to concentrate on his domestic program.

In contrast, look at Obama coming in just a year ago.  We were teetering—as you said—on the brink of another Great Depression.  We had two wars, a struggle with terrorism.  This is someone who had to deal with things on all sorts of fronts and engage with every single one of them.

MADDOW:  On the issue of how he has been perceived, we titled this segment “Common Wisdom Fail” because.


MADDOW:  . because—it seems like there is a maybe solidifying common wisdom that this first year hasn‘t been a success.  And, again, not trying to take this empirically in terms of judgments about his policies.


MADDOW:  But in terms of what he has done, we should address the issue of his approval ratings.  If he‘s at 50 percent, which is what he was at in the latest Gallup Poll, somewhat above and below that, how does that compare to other presidents and being a consequential president having to deal with a split American public?

BESCHLOSS:  When you do things that are controversial, like health care, your numbers are going to go down, because, you know, people will not like some of the things about that program.  Bill Clinton‘s toughest time during his first term was when he and Hillary tried to do health care.  It was immensely unpopular, wasn‘t evening taken up by Congress.  That‘s when his numbers really began to go down just before he lost Congress, both houses, in 1994.

And on top of that in Obama‘s case, he‘s got this enormous jobless rate which—I‘m still getting over the bikini graph, Rachel.  But—

Franklin Roosevelt never had one of those.  I think he would have liked it.

But, you know, despite that, the jobless number is high.  It could even possibly—God forbid—be higher, you know, later on this year through some scenarios.  Until that goes down, he‘s not going to get better in terms of numbers.

Ronald Reagan was in a very deep recession.  Beginning of 1983, his numbers were 41 percent.  Yet two years later, Reagan won that enormous landslide in 49 states.

MADDOW:  NBC News presidential historian Michael Beschloss helping us keep things in context as always—thank you very much for your time tonight.

BESCHLOSS:  My pleasure.

MADDOW:  OK.  So, would you pick someone to serve as vice president of the United States who didn‘t know what the Fed does?  Yes, John McCain did, and now he wishes you wouldn‘t bring that up, please.  That‘s next.


MADDOW:  Attorneys David Boise and Ted Olson faced off against one another in Bush v. Gore.  You might have heard of it.  Well, now, these two are on the same side, setting up what seems like a Supreme Court showdown that they believe could legalize same sex marriage.  They join us for the interview shortly.

Stay with us.



PALIN:  I think that these reporters who are not any part of what I was doing there as a V.P. candidate, I think that I explained a lot of this in “Going Rogue” in my book.  I was there, they were not there.

BILL O‘REILLY, FOX NEWS HOST:  Is this guy lying when he says you don‘t know the difference between North and South Korea.

PALIN:  Yes, that didn‘t surprise.  I hadn‘t seen the “60 Minutes” thing.  I had been warned, you know, don‘t watch.  It‘s a bunch of B.S.  from Schmidt and some of these guys.

O‘REILLY:  Is that a lie though?

PALIN:  Yes, that is a lie.  That is a lie.

O‘REILLY:  OK.  Was it a lie that you thought Saddam Hussein was behind 9/11?

PALIN:  You know what?  On that, I did talk a lot to Steve Schmidt about the history of the war, and about where perhaps the 9/11 terrorists came from, and could there have been any connection to Saddam Hussein.

O‘REILLY:  OK.  That‘s not a lie.

PALIN:  I asked questions about it.

O‘REILLY:  Right.  But you didn‘t—you weren‘t blaming 9/11 on Saddam Hussein?

PALIN:  No.  No.  No, no, no.


PALIN:  And yes.


MADDOW:  No, yes.  Where, perhaps, the 9/11 terrorists came from.

That was FOX News contributor Sarah Palin‘s debut as a paid contributor on that network, speaking even an hour ago, trying to rebut some of the new reporting about her coming that‘s come from Mark Halperin and John Heilemann in their new book, “Game Change,” about the 2008 election.

And here‘s the issue with the rebuttal.  For starters, I should note that the book does not claim that Sarah Palin didn‘t know the difference between North and South Korea, which is what Mr. O‘Reilly asked her.

Mr. O‘Reilly said, “Is this guy lying?  He says you don‘t know the difference between North Korea and South Korea.”

That‘s not actually what was alleged in the book.  What was alleged in the book was that Sarah Palin didn‘t know why there was a South Korea and a North Korea.  Why?

And so, we still don‘t know if she‘s figured that out, but Mr.

O‘Reilly has helped her rebut an argument that was never made against her.

Both of the allegations that Palin was denying in these clips we just showed come from the same passage in “Game Change.”  It‘s a passage about the prep and torturing that the McCain campaign put Sarah Palin through.  This particular cram session took place on September 10th, 2008, the day that Sarah Palin was preparing to fly to Anchorage for the deployment ceremony for her son Track‘s Army unit which was bound for Iraq.

Here‘s that section from the book, quote, “Before the flight to Anchorage, Schmidt, Wallace and other members of her traveling party met Palin at the Ritz-Carlton near Reagan Airport in Pentagon City, Virginia—and found that although she‘d made some progress with her memorization and studies, her grasp of rudimentary facts and concepts was minimal.  Palin couldn‘t explain why North and South Korea were separate nations.

She didn‘t know what the Fed did.

Asked who attacked America on 9/11, she suggested several times that it was Saddam Hussein.  Asked to identify the enemy that her son would be fighting in Iraq, she drew a blank.

Palin‘s horrified advisers provided her with scripted replies, which she memorized.

Later, on the plane, Palin said to her team, “I wish I‘d paid more attention to this stuff.”

Of course, on September 11th, 2008, the day after that crammed session, Sarah Palin still told her son‘s Army unit that they would be fighting the people responsible for 9/11 when they went to Iraq.


PALIN:  You‘ll be there to defend the innocent from the enemies who planned and carried out and rejoiced in the death of thousands of Americans.


MADDOW:  Actually, they were going to Iraq.  Whole separate idea.

Let‘s recap.  Sarah Palin apparently said that to a group of soldiers preparing to deploy to Iraq, the day after it was carefully explained to her who planned and carried out 9/11, and who we‘re fighting in Iraq, they‘re not interchangeable.  But then she still said it.

And then tonight, she said she wasn‘t blaming 9/11 on Saddam Hussein.  She was just asking questions about whether she could blame 9/11 on Saddam Hussein, telling Mr. O‘Reilly that she asked Steve Schmidt about the history of the war, and about where, perhaps, the 9/11 terrorists came from.  She asked these questions in 2008.

This is who John McCain tried to turn into our nation‘s vice president.

The reason that FOX News is, I‘m sure, delighted to have Governor Palin on their staff now, is because she is the single person in American politics who liberals and conservatives compete over in terms of who loves to talk about her more.  I‘m sure she will attract lots of viewers to that network.

But there is a serious point that‘s underlaid the passion and drama and snark about Sarah Palin as a public figure.  And it‘s the very real important question of whether or not she was qualified to be vice president of the United States when John McCain picked her.

Of course, this has always been a legitimate question buried underneath the ridicule and the sarcasm.  But given the new things we have learned about Sarah Palin in the campaign, and her depth of knowledge on both domestic and world affairs and how much John McCain and this campaign asked about those things before they offered her the job, it‘s becoming an even more serious question.

The Office of Vice President is a pretty anti-small “d” democratic concept.  Nobody gets to vote for vice president alone.  One person, the presidential nominee, gets to chose the vice presidential nominee.  And that‘s why that choice is considered to be the first big important decision a presidential candidate makes.  That‘s why we judge presidential candidates on their vice presidential selections.

It shows how they go about making presidential-sized decisions.  It shows how much they are thinking before the country‘s interests when they are handed personally a decision that the whole country is going to have to live with, because who our vice president will be is a really serious proposition for the country.  In part, because the vice presidency is something that comes with real responsibility.  See the vice presidency of Dick Cheney, for example, it can be a powerful position in its own right.

But most importantly, if the president—God forbid—dies while in office, the vice president automatically becomes president without ever having been elected to that office.

And John McCain running as a 72-year-old cancer survivor, picking Sarah Palin for all the excitement her selection unleashed, poses a really serious question about his judgment—about whether he put the country at risk in making this choice without knowing what she knew about the world or caring enough to have that impinged on him picking her.

To a large degree, the question of Sarah Palin‘s qualifications for the job was evident during the campaign.  At the time John McCain simply brushed it aside.


SEN. JOHN MCCAIN ®, ARIZONA:  I think she‘s the most qualified of any that has run recently for vice president, to tell you the truth.


MADDOW:  The most qualified of anybody.

That was John McCain‘s offense as defense of his choice back in October 2008, also a nice dig at his old pal Joe Lieberman.  That when John McCain was still campaigning for the presidency.

But as the revelations about Governor Palin‘s knowledge of basic facts about the state of the world and recent history have accumulated, the question of her qualifications and of John McCain‘s judgment in choosing her have grown more serious, and therefore, they have become harder to answer with hyperbole alone.

Matt Lauer put those questions to John McCain this morning on “The Today Show,” quoting from “Game Change,” this new book with all these revelations, here was the very uncomfortable thing that happened once he asked that question.


MATT LAUER, TODAY SHOW:  You‘re kind of front and center in a lot of the chapters that seem to be a little inflammatory.  So, let me get you on the record about some of it.  One is that your vetting process for Governor Palin before choosing her as your running mate was wholly inadequate.

From page 363, it says—and I‘m combining two quotes here—“In judging Palin, ‘was relying on vetting so hasty and haphazard, it barely merited the name.  No one had interviewed her husband, no one had spoken to her political enemies, no vetters had descended on Alaska.”

Is that a fair assessment?

MCCAIN:  I wouldn‘t know.  The fact is, that I‘m proud of Sarah Palin, I‘m proud of the campaign we waged.  She energized our party.  She will be a major factor in American politics in the future, and I‘m proud of our campaign.

But I‘ve just spent my time, Matt, over where three young Americans were just killed in Afghanistan.  My job.

LAUER:  And I respect that.

MCCAIN:  And that was over a year ago.

LAUER:  I respect that, sir.

MCCAIN:  And I‘m not going to get into it.  I‘m not going to get into it.

LAUER:  But your comment (UNINTELLIGIBLE) ...

MCCAIN:  I‘m not going to get into it.  

LAUER:  ... “I wouldn‘t know,” is somewhat surprising to me.  You were the presidential candidate.  

MCCAIN:  Look, I wouldn‘t know what the sources are, nor care.  


MADDOW:  I wouldn‘t know.  I wouldn‘t know nor care.  That was over a year ago.  I don‘t want to talk about it. 

Do you remember John McCain‘s slogan during the campaign?  It was “country first.”  This is how much he cared about the qualifications of a person he was personally proposing to put a heartbeat away from the presidency.

This is how he regards a decision that would have had a huge impact on the country if he had been elected, a decision that was his alone to make, “Don‘t know, don‘t care.”  Good to know where you stand on that one, Sen. McCain.  Campaign first.  Country?  As you say, I wouldn‘t know, wouldn‘t care. 


MADDOW:  Back in the mid-‘90s, before same sex marriage was a big political issue, the gay conservative writer, Andrew Sullivan, wrote a book was written called “Virtually Normal.”  Mr. Sullivan isn‘t always described as a conservative anymore because of his vocal opposition to some of the policies of George W. Bush.   

But at the time, there was no question that Andrew Sullivan was a conservative.  Part of the way you could tell he was a conservative was that his book, “Virtually Normal,” argued for gay marriage. 

See, as recently as 1996, when that book came out, gay marriage was seen as a fundamentally conservative idea.  Like in many civil rights movements, there had long been tensions between the revolutionaries and the reformers in gay politics, people who wanted liberation, who wanted to overturn the social institutions that excluded some people and made up an unfair system, and people who didn‘t want to overturn anything.

They just wanted everybody to be able to have access to those existing institutions.  The gay marriage fight that has been waged ever since shows that the gay rights movement, in some ways, picked the more conservative objection, which you would never know, by the way, that the conservative movement has reacted to the issue of gay marriage.

The conservatives are so opposed to gay marriage that they proactively put anti-gay marriage constitutional amendments on state ballots. 

The anti-gay animus they have used the idea of gay marriage to stir up has been so politically important to them that it was part of the Republican Party‘s election strategy for 2004, to turn out voters motivated by the desire to vote against gay marriage, and then count on those voters also voting for the other conservative choices on the ballot that year, namely President Bush, another Republican candidate. 

But for all of the anti-gay marriage conservative activism and agitation and political exploitation, something has happened in the past year that has brought the gay marriage issue back to its conservative roots in a way. 

Last spring, a man considered by many to be the leading conservative lawyer of his generation, present at the founding of federalist society.  He defended Ronald Reagan during the Iran Contra Affair, perennial Supreme Court nominee mention.  George W. Bush‘s first solicitor general, Ted Olson.

He called the lead attorney he had squared off against in Bush versus Gore before the Supreme Court.  And he asked his courtroom opponent, David Boies, if he would like to work together with him to try to overturn California‘s anti-gay marriage Proposition 8 in federal court. 

Again, this would not be Ted Olson versus David Boies again, but rather, Ted Olson and David Boies together against the opponents of gay marriage.  If you‘re wondering why the conservative case for gay marriage is the cover story on “Newsweek” right now, it‘s because of our next guests. 

Joining us from California where they are in the midst of their federal court battle over California‘s anti-gay marriage constitutional amendment, Proposition 8, are David Boies and Ted Olson.  Gentlemen, thank you so much for your time tonight. 



MADDOW:  Mr. Olson, let me start with you.  I have read the legal arguments you‘ve made in favor of same sex marriage.  I read your opening statement from the trial this week.  But what moved you personally to take this on, to wade into this fight? 

OLSON:  Well, I think it‘s the right fight to battle.  It‘s the right time to fight this battle.  David and I agree that it isn‘t a liberal or conservative battle.  It‘s an issue about American rights, American decency, American values, liberty and equal treatment of individuals who are American citizens just like the rest of us.  We think it‘s time that we recognize their right to equal treatment.  

MADDOW:  Mr. Boies, I know there was some initial controversy when you and Mr. Olson announced you would be taking on this case together.  In part because this is - you‘re stepping into the stream of a fight that‘s already being waged before you, and through different means. 

Why pursue this as a federal issue?  Everybody‘s guess is that this is aimed straight at a Supreme Court challenge on this issue. 

BOIES:  One of the reasons that it has to be a federal issue is that the federal Constitution guarantees every citizen the right to equal protection of the laws.  Gay and lesbian couples are being denied that protection. 

Now, it‘s true you can proceed state by state and nobody thinks that‘s not a good idea.  It‘s fine to proceed state by state.  But as we‘ve seen in a number of cases, the state by state battle has not succeeded. 

And in those cases like California, and like my home state of New York, it‘s important that the federal Constitution will guarantee that equal protection be vindicated. 

MADDOW:  In the introduction to talking to you two, I mentioned that gay people seeking the right of marriage was initially seen particularly within the gay community as a pretty conservative course for the movement. 

Mr. Olson I know you wrote in “Newsweek” this week that the fact that individuals who happen to be gay want to share in this vital social institution, marriage, is evidence that conservative ideals enjoy widespread acceptance. 

I want to ask you though about the conservative legal argument that a federal ruling for gay marriage would be seen as activist judging as Mr. Boies said.  So far the record of the state is when they put these things up to a popular vote, it‘s something like zero and 31.  What‘s the argument for securing this right through the courts when it‘s been so roundly rejected at the ballot box? 

OLSON:  Well, the federal courts, the Supreme Court of the United States has repeatedly recognized what you said, that marriage is a fundamental right of Americans in this country.  It is the building block of our community. 

People who wish to enter into a loving permanent relationship and wish to bond themselves together and share their aspirations and future is a conservative value.  I don‘t think that - I don‘t want to claim that as a conservative value necessarily, because it‘s a liberal value, too. 

It‘s an American value.  But the idea that people want to live together and be a part of a community and help build things together for themselves and for their family is certainly a conservative value.  But it‘s also a liberal and an American value.  

MADDOW:  When I hear you talk about that human - the human side of this, and the - what people go through when they are deprived of civil rights.  I know that on - I‘m hearing both an argument there that‘s compelling in a rhetorical sense. 

But I‘m also hearing legal strategy.  Mr. Boies, I know have you been involved in a lot of different civil rights issues over the course of your career.  Legally, you‘ve talked about the need to humanize the victims of civil rights violations. 

I know in the fight this week, you guys have asked witnesses what have sometimes been seen as personal questions about their life experiences as gay people.  Is that part of the legal strategy? 

BOIES:  Absolutely, because there are three basic points that we want to make.  One is that marriage is a fundamental right, and nobody can really disagree with that. 

The second is that gay and lesbian couples are seriously harmed when they‘re deprived of that right.  It harms them.  It harms the children that they‘re raising, and that they want to raise. 

And one of the ways of expressing that in the court is to bring these people in and let people hear what their stories are.  And I don‘t think anybody in the courtroom, who was there yesterday when these plaintiffs testified. could go away unmoved by their stories. 

And the third point is that allowing them to be married doesn‘t hurt anybody.  It doesn‘t hurt heterosexuals.  I mean, I can‘t imagine heterosexuals in love deciding, “We‘re not to get married because our gay neighbor can get married.” 

There simply isn‘t any harm to anyone in allowing these people to marry the people that they love.  And the way that you make that real is by bringing the people into court so everybody can see what they want, how they are, that they‘re just like you and me.  And all they want are the same things that you and I take for granted, the right to go out and marry the person that we love. 

MADDOW:  In making, Mr. Olson, what you call the conservative case for gay marriage in “Newsweek,” and I hear you saying this is American values.  These aren‘t conservative or liberal values.” 

But you wrote you had been overwhelmed by expressions of gratitude and goodwill from persons in all walks of life, including from many conservatives and libertarians whose names might surprise. 

I, of course, would love to hear some of those names if you‘re at liberty to share them.  But even if you‘re not, can I ask you, is there more private acceptance of homosexuality among conservatives than people are willing to admit to publicly? 

OLSON:  Yes, I believe there is more private acceptance of homosexuality, especially among young people.  This country is changing, and it‘s changing rapidly.  The acceptance of people that aren‘t exactly like us is growing and growing in America. 

Also, one of the things that David and I hope to accomplish with this trial, and we hope that television will be a part of this trial at some point during this case, is to look into the hearts and souls of the people that we‘re representing. 

The story that David was mentioning that was told yesterday by the individuals we represent, is very compelling.  If you listen to these individuals and you hear our arguments, you are going to agree with us. 

And if we have the opportunity to the spread that message throughout the country as this case gives us an opportunity to do, more and more people will accept the decency and equality that our Constitution requires. 

So I think there is increasing acceptance of the fact that there are people that are different in our society, but they‘re otherwise just like us, and that will increase as people are educated if they will just listen. 

MADDOW:  Attorneys David Boies and Ted Olson, part of the reason that people are listening is because you two are a very odd couple standing there together.  We really appreciate you both coming on with us tonight.  Thank you for your time.  Good luck.  

BOIES:  Thank you.  

OLSON:  Thank you.  

MADDOW:  David Boies and Ted Olson joining us from California where they are in the midst of their federal court fight over Proposition 8 in California.  We will be right back. 


MADDOW:  Coming up on “COUNTDOWN,” Keith‘s take on homerun king, Mark McGwire‘s confession that he used steroids, an issue I don‘t even care about and I was completely riveted.  You should catch Keith on this if you haven‘t seen him. 

And on this show, most U.S. ex-presidents have more or less publicly distinguished careers after leaving the White House.  As for George W.  Bush, we‘ll rundown what he‘s doing now and you can decide.  Stay with us. 

But first, in any public opinion poll, something getting a clear majority response is usually cause for a headline or two.  You know, president‘s approval ratings below 50 percent.  President‘s approval ratings above 50 percent. 

A majority of respondents think blah, blah, blah, blah, blah, right?  If you poll on something and it‘s wildly lopsided, you may end up with a two-thirds majority or even a three-quarters majority. 

But when you poll the people of Afghanistan, can you get a 95 percent majority when you ask them if corruption is a problem in their government.  Ninety-five percent of Afghans said yes. 

I‘m sure it is incredibly difficult to do a national opinion poll in Afghanistan given the lack of, say, roads.  But BBC and ABC and a German news program have done just that, and the findings are incredible.  As I‘ve said, 95 percent of Afghans say corruption in their government is a problem. 

Still, though, they prefer their current government to the idea of the Taliban coming back into power.  Ninety percent want their current government rather than the Taliban.  And a really small proportion of the Afghans want the Taliban back - only six percent.

In a news that will cheer supporters of President Obama‘s Afghanistan escalation, a big majority of Afghans support U.S. troops being in their country.  Sixty-eight percent - and that‘s even up five points from a year ago. 

Last year, when Afghans were asked whether they thought things would get better over the course of the next year, the optimism number from them was 51 percent.  Now, that optimism number has risen by 20 points.  More than seven in 10 Afghans say things are on the upswing in their country - optimi-stan. 

I‘m generally not that into polls.  You might notice we don‘t talk about them all that often.  But because our war there, they tell us, is all about the preferences of the people of Afghanistan. 

And because there seems to be about one poll a year in that whole country, I‘ve got to tell you this is one poll that I think is worth checking out.  It‘s fascinating reading.  We have posted the whole thing, a PDF document of it.  If you want to see it, it‘s on our Web site,  We‘ll be right back. 


MADDOW:  Popular motivational speaker, George W. Bush, has an exciting gig coming up.  I don‘t want to give it away, but it involves wildlife.  That‘s next.


MADDOW:  Former President George W. Bush has kept very busy over the past 11 ½ months including speaking at the “Get Motivated” seminars where he shared a stage with Terry Bradshaw and get rich hucksters pitching real estate investment advice. 

We thought that nothing could top “Get Motivated” for post-presidency cringe-inducing activity.  But today, thanks to reporting by TPM D.C., we learned about the former leader of the free world‘s next big gig. 


KENT JONES, MSNBC CORRESPONDENT (voice-over):  On Saturday, Saturday, Saturday, January 23rd, it‘s the Safari Club International Convention, starring live in person, the 43rd president of the United States of America, George W. Bush. 

Prepare to be motivated by two terms worth of presidential wit and wisdom.  Did you know he picks up dog poop in front of his house? 

But wait, joining the president will be Liz Cheney.  Bush-Cheney

they‘re back, safari style.  But that‘s not all.  Chart-toppers Three Dog Night, the Bellamy Brothers and twist the night away to Papa Doo Run Run.  They sound more like the Beach Boys than the Beach Boys. 

And while you‘re here, don‘t miss our world class hunting seminars like wild game and wine pairing and designing and building a trophy room that fits you.  All this, plus President George W. Bush, Liz Cheney and Papa Doo Run Run, Saturday, January 23rd in Reno.  Be there.  Hunting for fun?  Mission accomplished. 


MADDOW:  OK.  The ad is fake, but all the information, true.  George W. Bush, not yet one year out of the presidency, sharing a bill alongside seminars called things like “Proper Boots‘ Proper Care,” alongside Liz Cheney, Three Dog Night and a Beach Boys cover band named Papa Doo Run Run. 

He‘s is not in the bill alongside the Beach Boys.  He‘s alongside a Beach Boys cover band.  I hope he is making a ton of money doing this.  I really do. 


MADDOW:  An update for you on breaking news out of Haiti tonight where an earthquake registering 7.0 struck just before 5:00 eastern.  Right now, landlines are down, according to one aide worker.  The capital is in darkness. 

People have gathered in the streets.  There have since been six aftershocks, the worst reportedly measured 5.9.  The U.N. says its headquarters in Haiti has been seriously damaged and a large number of U.N.  personnel in Haiti are unaccounted for. 

A hospital and even the presidential palace were damaged.  Here‘s what the presidential palace used to look like.  Here‘s what it looks like now. 

Yes, Al Jazeera English reporting that the president himself and his wife were unharmed.  Damage, of course, severe and catastrophic.  The State Department has set up a number for Americans seeking information about family members in Haiti.  That number is 888-474-747.  Stay tuned to MSNBC through the night for live updates.  Thanks.



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