The Rachel Maddow Show, Transcript 08/04/10

Guests:
Anne Thompson, Dahlia Lithwick, David Boies, Ted Olson, Dave “Mudcat” Saunders
Transcript:

RACHEL MADDOW, HOST:  Good evening, Keith.  Thank you.

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

As Keith mentioned, pending traffic jams and such, we will be speaking this hour with David Boies and Ted Olson, the two—the unlikely team of lawyers of high powered lawyers who successfully argued the case against Proposition 8.  We‘ll be speaking with them in just a moment.

In the past decade, 31 states put to a vote the question of whether or not gay people should be allowed to get married.  Thirty-one states have put those minority rights up to a vote.  And in all 31 of those states, that minority rights issue has gone down to defeat.

In general, when ask you for a majority rules vote on minority rights, you get results like what we‘ve seen on the gay marriage issue – 31 out of 31 times in 31 out of 31 states voters voted it down.

But here‘s the thing about rights—they‘re not actually supposed to be voted on.  That‘s why they‘re called rights.  “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

No state shall deny to any person within its jurisdiction the equal protections of the laws—even if lots of people in that state want to.  It‘s not up for a vote.  Rights are part of the deal if you‘re an American.  That‘s why the Equal Protection Clause is in the Constitution.  In this case, specifically, it‘s in part of the newly controversial 14th Amendment to the Constitution.

Rights are not supposed to be put up for a vote.  They‘re not a popularity contest.  They‘re supposed to be subject to a test of their constitutionality.  That‘s why we have courts, not just to put people on trial, but to try the things the people say they want to be their laws.  We try those things against the Constitution.  And the Constitution restricts the things that Americans can make laws about so those laws don‘t infringe on our constitutionally protected rights.

That‘s sort of the big idea in this country.  That‘s sort of the big idea that is this country.  America, come for the religious liberty, stay for the rock-ribbed constitutional guarantees of all your other rights.

Today, for the first time in our nation‘s history, a federal court put the issue of a state ban on gay marriage to the constitutional test.  The results were blistering.  A federal judge in California ruled unequivocally today in the strongest possible terms that California‘s recently passed gay marriage ban, Prop 8, is unconstitutional.  The ruling‘s long but it is page turner.

Federal Judge Vaughn Walker summed up his ruling this way, quote, “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.  The evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  The court concludes that Proposition 8 is unconstitutional.”

And with that, California‘s gay marriage ban went kaput—a huge victory, of course, for gay rights supporters in that state and possibly around the country.

But Judge Walker, who‘s a George H.W. Bush appointee, Judge Walker not only struck down California‘s gay marriage ban as unconstitutional, he also probably set the stage for what will be the next big court fight and the next big political fight—the anti-gay marriage side that was defeated in this case has already filed paperwork expressing intention to appeal the decision.

We should expect to hear lots of excerpts from Judge Walker‘s ruling.  Not only in the legal discussion, but I think you‘ll hear it in the political fight that is sure to come as well, because I think many conservatives will see some of this language as explosive.

Quote, “That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to a vote.  They depend on the outcome of no elections.”

Also, there‘s this: “The evidence shows that movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.  The evidence did not show any historical purpose for excluding same-sex couples from marriage as states have never required spouses to have an ability or willingness to procreate in order to marry.  Rather, the exclusion existed as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.  That time has passed.

The right to marry has been historically and remains the right to choose a spouse and with mutual consent join together and form a household.  Race and gender restrictions shape marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.  Today, gender is not relevant to the state in determining spouses‘ obligations to each other and to their dependents.”

Stick that on a bumper sticker.  Actually, I will bet you that somewhere in right-wing America, someone already is.

You know, the night that the gay marriage ban passed in California back in November 2008, gay people and gay rights supporters took to the streets in anger during what was an otherwise joyous election night for liberals and progressives.  Obama was just elected president.  But then in California, that was Prop 8.

Today, some of those same protesters were back in the streets, this time celebrating—celebrating a dramatic and provocative reversal.

In a few minutes, we‘ll be joined by David Boies and Ted Olson, the two attorneys who won the case against Prop 8 today.

But, first, we‘re joined by Slate.com‘s legal correspondent and senior editor, Dahlia Lithwick.

Dahlia, thanks so much for joining us.

DAHLIA LITHWICK, SLATE.COM:  Hi there, Rachel.

MADDOW:  So, the senior legal counsel for the Alliance Defense Fund, the people defending Prop 8, say they plan to appeal the decision today, all the way to the U.S. Supreme Court.  Where do they start?  What happens next?

LITHWICK:  Well, first we have a little site that we‘re going to have over the judge staying his order.  Today, in other words, Judge Walker almost immediately temporarily stayed his order.  And he‘s going to let the parties decide.

I think their papers are due actually—it‘s definitely expedited.  But I think, by Friday, they‘ve got to get their filings in.  And then he‘s going to make a decision, I‘m hearing, on Tuesday, about whether or not this is going to be stayed pending an appeal.

So, we have already a fight over a stay.  And then over and above that, as you say, there‘s going to be an appeals process, both sides had intended to appeal, because the end game here was always to get this before the U.S. Supreme Court.

MADDOW:  In terms of the ruling, Judge Walker‘s reasoning, the way he wrote his decision, if or when this does make it to the U.S. Supreme Court, or even looking ahead to the 9th Circuit, based on your understanding of the law here, how strong do you think the anti-gay marriage appeal is going to be?  How resilient do you think this ruling is going to be when it gets higher scrutiny?

LITHWICK:  It‘s a great question, Rachel.  And it‘s really clear when you look at this 138-page opinion of which you read some of the highlights but not nearly all.

MADDOW:  Yes.

LITHWICK:  It‘s really worth reading in its entirety.

But, you know, two very, very strategic things that Judge Walker did.  One, and you quoted some of these quotes yourself, he quoted Anthony Kennedy, who‘s been the pivotal justice on gay rights issues in Romer, the Colorado anti-gay rights initiative and then again in Lawrence v. Texas, the Texas sodomy case.

It was Anthony Kennedy, believe it or not, on a very, very polarized court who always stood really steadfast and in lofty language for the rights and the dignity of gay Americans.  So, this is couched in a little bit of a love letter to Anthony Kennedy.

The other thing that is really important to understand in Judge Walker‘s order is that there are findings of fact and there are findings of law.  An appellate court has to defer enormously to a judge‘s finding of fact.  They can really look at findings of law from scratch.

And Judge Walker puts together 80 different findings of fact in this cage, really meticulously combing through the record, looking at the evidence, citing the witnesses and finding 80 different places where he says things as a matter of fact like kids that—it doesn‘t make any difference if you are raised by gay or straight parents, that the animus of Prop 8 was biased and based on stereotypes.

So, bump, bump, bump, he goes down 80 findings of fact that the courts are going to have to take very seriously.

So, I think that he really constructed something that is going to be hard to dismiss as, you know, activist judges, finger painting, you know, to loud music.

MADDOW:  All right.  I‘m so glad that you pointed that out.  That‘s how—just as a layman, I don‘t have any legal training or never, but I was reading through this.  I got to the statements of fact and I—instead of just reading them online, I started printing them out and highlighting them because I sort of couldn‘t believe that this was in that part of the ruling.

I mean, the campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.  He then says the stereotypes are not based in fact.  He makes claims about, you know, the health of children in gay families.  It‘s a bold, bold ruling.

In terms of the federal and national implications for this, Dahlia, obviously, this is narrowly about Proposition 8 in California.  But this was a federal court ruling.  Does this have implications for other states?

LITHWICK:  Well, not immediately.  And, in fact, Judge Walker was very careful in the—in his own closing arguments and when he was talking to the lawyers asking questions.  He asked a lot of questions about DOMA, the Defense of Marriage Act.  That doesn‘t come up in this case.

So, I think what this really does is it—a very, very broad statement.  I mean, he finds both as a matter of equal protection and as a matter of due process of law, this is unconstitutional.  So, it‘s not a narrow ruling, Rachel.  But, certainly, I think this tees up a question that the Supreme Court probably wants to avoid but I think it‘s really going to have to deal with it.

I mean, this is—you know, has always been a gamble about, as I said, one person, Anthony Kennedy, at the center of the court.  And I think it tees it up in a way that‘s going to make, really force the court to contend with this issue squarely on the merits and again dealing with the very, very elaborate findings of fact.

MADDOW:  And that was always the case that was made by David Boies and Ted Olson when they faced criticism for pushing forward with this case when some other advocates of this issue wanted other cases to take the issue forward.  They always maintained that they felt like this was their best—this was their best vehicle for bringing it to the Supreme Court.

David Boies and Ted Olson will actually be joining us next.  They‘re standing by.

Dahlia Lithwick, senior editor and legal correspondent for Slate.com, you really helped us clarify this.  Thanks a lot.

LITHWICK:  Thank you, Rachel.

MADDOW:  There is much more to say about today‘s historic repudiation of Proposition of 8 and where the issue goes next.  We will get there with David Boies and Ted Olson, the attorneys who pushed this case in the California federal court system—coming up next.

And later on, think you don‘t have to vote in the midterms, don‘t make me come to your house.

Please stay with us.

(COMMERCIAL BREAK)

MADDOW:  On election night 2008, in November of 2008, this was probably the single strangest on-air moment for me.  This happened after midnight east coast time.  Barack Obama had already won the presidency.  And we were here in this studio covering the reaction to the election results around the country.

And in the midst of that, with everybody else I work with here at MSNBC, this happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I believe we have pictures out of San Francisco as well.  Some of the celebration pouring out in the Castro District of the city, as it‘s known, a place near and dear to your heart.

CHRIS MATTHEWS, MSNBC HOST:  Certainly me, having written for the papers out there all these years.

MADDOW:  That may not all be celebration if it‘s in the Castro and we haven‘t got—

(CROSSTALK)

(END VIDEO CLIP)

MADDOW:  That‘s me saying, not may not be all celebrating you guys. 

Have you heard anything about Prop 8?

What was happening in the Castro, in San Francisco on election night, was a little more complicated than just people cheering for Obama.  It was people realizing that on the same night that America voted for a first—its first African-American president, same-sex couples in California had lost their existing civil right to get married.

Joining us now from a rally in Los Angeles are the two unlikely allies who brought this case in federal court, attorneys David Boies and Ted Olson.  They faced off against each other, of course, in Bush v. Gore in 2000, but they stood on the same side in this case.

Gentlemen, congratulations.  And thank you so much for your time tonight.

DAVID BOIES, ATTORNEY WHO ARGUED AGAINST PROP 8:  Thank you.

TED OLSON, ATTORNEY WHO ARGUED AGAINST PROP 8:  Thank you, Rachel.

MADDOW:  Mr. Olson, let me start with you.  Do you feel like you got everything you were hoping for from Judge Walker‘s ruling today?

OLSON:  We feel very, very gratified by Judge Walker‘s ruling.  It was a 138-page analysis of all of the evidence in the case on both sides.  It thoroughly dismantled the evidence presented by the other side.  It analyzed all of the legal issues, the pros and cons from every conceivable standpoint, and came out on the side of the gay and lesbian couple that‘s we represented in every respect.  We‘re very, very grateful.

MADDOW:  Mr. Boies, looking ahead to next steps here, obviously, the opposition in this case already filed paperwork indicating that they would like to appeal.  Do—candidly, do you think there are any elements of this ruling that maybe difficult to defend on appeal?  Judge Walker obviously wrote a very forceful statement of his view of the evidence.

BOIES:  It was a very, very careful and well-written opinion.  And it was very well grounded in the facts of the case.

We said at the beginning that we would establish three things: that marriage is a fundamental right, and that depriving gays and lesbians the right to marry harm them and harm their children, and that depriving gays and lesbians the right to marry could not help heterosexual marriage at all.

The judge pointed out that we were right on all three of those grounds, and that not only were we right, but the defendant‘s own witnesses had admitted the three propositions during the trial.  So, I think that one of the things the judge has done is it made a very, very strong opinion that‘s very, very difficult to overturn on appeal.

MADDOW:  Mr. Olson, there‘s another gay marriage case that is making its way to the Supreme Court from Massachusetts where gay marriage is legal, of course.  Last month, the U.S. district court judge ruled that Defense of Marriage Act—the federal Defense of Marriage Act is unconstitutional.

What effect do those cases have on one another?  What effect do those cases—how do they interact with this case that you‘ve just won today in terms of what happens ultimately at the federal or Supreme Court level?

OLSON:  Well, they‘re different cases involving different issues.  But the common thread in these cases is treating gay and lesbian individuals equally and not discriminating against them, not applying the laws of the United States or the laws of California or any other state in a discriminatory fashion for no purpose against individuals who happen to be gay and lesbian.

The judges in the Massachusetts case and the judge today in the California Proposition 8 case went through all of the evidence and could find no justification, no rational basis for the different treatment of gays and individuals with respect to marriage.  And the Massachusetts judge did pretty much the same thing with the federal defense of marriage statute.

So, the cases resonate with one another.  They make a strong collective case for ending discrimination on this basis.

MADDOW:  One of the things that is remarkable about this case is the fact that the two of you are arguing it together—obviously coming from very different places in terms of your own affiliations with Democratic and Republican parties, your own political views.  But you come together on this issue.

I wonder, looking ahead to the U.S. Supreme Court, what is considered to be a very conservative John Roberts-led Supreme Court right now—is this the right court to bring up a gay marriage case before?  Is the court just too conservative to ever rule in favor of equality in this current incarnation?

BOIES:  I think that one of the messages that Ted and I working together on this case sends is that this is not a Republican or Democratic issue.  Not a conservative, it‘s not a liberal issue.  It‘s a human rights, it‘s a civil rights issue.

This was a great victory for gays and lesbians and the children that they raise.  It‘s also great victory for all Americans, for anybody who has ever been discriminated against because they are of the different color or different sects, different creed—indeed all Americans who have an interest in equality.  I think that is a common value of all of us, not just conservatives, not just liberals.

And I would hope that the Supreme Court, like everybody, would rejoice in this kind of advancement of constitutional civil rights.

OLSON:  I agree with David.  This is—we‘ve got to stop thinking about equality in terms of conservative or liberal.  We need to start thinking about the fact that gays and lesbian citizens are brothers and our sisters.  They‘re entitled to equal places in our society that should be a conservative value.  It is also a liberal value.  It is not something that should split us.

MADDOW:  Would either one of you, gentlemen, mind doing me a favor and just turning around to the people behind you and asking them if they‘re happy with today‘s ruling?

OLSON:  David will do that.

BOIES:  What do you think about that?

(CHEERING)

MADDOW:  All right.  I think that‘s a fairly good, you know, cross

reference there.  Good sample of the population.

           

BOIES:  OK.

MADDOW:  Well, David Boies and Ted Olson, I know that this is a very big day for you.  And I really appreciate you taking the time to talk with us today.  Congratulations again and good luck as this continues forward.

BOIES:  Thank you very much.

OLSON:  Thank you, Rachel.

MADDOW:  Wow.  OK.  Well, do you remember the really creepy anti-gay researcher who said that people could be cured of the gay?  Except then he turned up in an airport coming home from a European vacation with a really cute, blond rent boy who he tried to explain away as his luggage handler?  Do you remember that story?

Well, that guy turns up in the most amazing way in this court ruling today from California.  Not the rent boy.  The anti-gay guy who hired the rent boy for his baggage—he turns up in a ruling.  You sort of won‘t believe how.  That‘s next.

(COMMERCIAL BREAK)

MADDOW:  One amazing thing about the gay marriage ban that was overturned in California today was something I had known about the trial while it was happening.  But I didn‘t really appreciate the importance of it until I read the ruling that came out this afternoon.

The anti-gay marriage people, the people defending the gay marriage ban in court, only called two experts in their whole case.  They only called two witnesses.

The first one was this guy, David Blankenhorn.  Mr. Blankenhorn is president of the Institute for American Values.

Now, Judge Walker spent the better part of 10 pages of his ruling just talking smack about David Blankenhorn.  Think I‘m kidding?  Consider this, quote, “The court now determine that‘s Mr. Blankenhorn‘s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.”  Wow.

Quote, “Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents‘ factual assertions.”  Aw.  Aw.

Here‘s another, “Blankenhorn‘s book, ‘The Future of Marriage,” lists numerous consequences of permitting same-sex couples to marry.  Mr.  Blankenhorn explained that the list of consequences arose from a—from a group thought experiment in which an idea was written down if someone suggested it.”

Quote, “None of Blankenhorn‘s opinions is reliable.”  Aw.  Aw.  Aw.

Back in May, “New York Times” columnist Frank Rich tied the same Mr.  Blankenhorn to this star of the anti-gay movement who you may recognize, George Rekers—George Rekers whose own paid testimony against gay families in Arkansas and Florida was so bad that judges in those states made special notice of how bad he was as a witness.

George Rekers is nationally famous outside legal circles because in between his quacking about how to cure the gays with his National Association for Research and Therapy of Homosexuality, George Rekers was spotted—that‘s him there on the left—coming home in April from a two-week European vacation with a rent boy—a young man hired from rentboy.com, the young man who‘d been giving the Reverend Rekers very, very specialized massages on that vacation—although Mr. Rekers maintains the comely young man was simply helping him with his baggage.  And to the extent that baggage means a lot of other things, I suppose I can‘t complain.

After George Rekers got caught with the rent boy in the Miami airport, Mr. Rekers resigned his position in NARTH.  He was gone.  But his quacky scholarship lived on.

Mr. Blankenhorn telling the court in California, in the trial that was ruled on today, that it is bad for kids to be raised by two moms or two dads.  In a May 19th letter to “The New York Times,” Mr. Blankenhorn wrote that he never met George Rekers or read any of his writings.

It turned out that wasn‘t true.  Mr. Blankenhorn wrote his own correction letter to “The Times” on June 3rd, admitting that actually he had consulted George Rekers‘ work in preparing his testimony on behalf of Prop 8.

Mr. Rekers and his NARTH association thing for curing the gay people, he also turned up in the testimony of another anti-gay marriage guy who appeared at this trial.  Now, this witness was actually called as an adverse witness.  He was called by David Boies and Ted Olson.  He was called by the side seeking to have the gay marriage ban overturned.  He was called not as a friendly witness though.

His name is Hak-Shing William Tam.  He identified himself to the court as secretary of the America Return to God Prayer Movement.  And this is one of those things where the judge is so obviously disgusted by this witness that there‘s no way that I, as a TV host, can improve on what the judge just writes in the ruling about the witness.

Check this out.  Ready?

All right.  We‘ll get this right.  “Proponent Hak-Shing William Tam testified that he is the secretary of the America Return to God Prayer Movement” which operates the website ‘1man1woman.net.‘  ‘1man1woman.net.‘ encouraged voters to support Proposition 8 on grounds that homosexuals are 12 times more likely to molest children and because Proposition 8 will cause states one by one to fall into Satan‘s hands.” 

Mr. Tam identifies NARTH, the National Association for Research and Therapy of Homosexuality - it‘s the George Rekers thing - as the source of information about homosexuality because he, quote, “believes in what they say.”

“Mr. Tam identified the Internet as the source of information connecting same-sex marriage to polygamy and incest.  Protect Marriage,” the pro-Proposition 8 campaign, “relied on Mr. Tam and, through Mr. Tam, used the Web site, ‘1Man1Woman.net‘ as part of the Protect Marriage campaign.” 

So that‘s directly - that‘s directly from the ruling.  So, in other words, dude learned from the Rent Boy guy that gays are bad and he knows that George Rekers must be right about that because the man believes George Rekers. 

Also, he says, as backup, the Internet says so.  This was the case for California‘s gay marriage ban.  This was the case they put forward.  The Hak-Shing William Tam transcript was actually so amazing you deserve to see part of it acted out by the Proposition 8 trial re-enactment theater. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  where did you get that idea? 

UNIDENTIFIED MALE:  It‘s on the internet. 

UNIDENTIFIED MALE:  It‘s on the internet? 

UNIDENTIFIED MALE:  Yes. 

(END VIDEO CLIP)

MADDOW:  You know what else is on the internet now?  Judge Vaughn Walker‘s ruling in this case, which I kid you not, is better than whatever novel you are currently reading right now and you should print it out and curl up with it instead.  You will not be disappointed.  It‘s on the Internet.

(COMMERCIAL BREAK)

MADDOW:  My favorite song.  On the Democratic side in Missouri yesterday, there was a primary for Senate but just barely.  Robin Carnahan got a higher percentage of the vote than Daniel Radcliffe would get at a Harry Potter look-alike contest, almost 84 percent of the vote. 

On the Republican side, it was a different story.  Senate hopeful Roy Blunt was fighting off so many opponents they could have fielded a baseball team.  That‘s the Kansas City “Roy-Uh-Uh‘s.”  That‘s really bad. 

Mr. Blunt also faced opposition from the tea party movement which fielded its own candidate, Chuck Purgason which caused lots of drama when Congresswoman Michele Bachmann, founder of the tea party caucus, endorsed not the tea party guy, but instead Mr. Blunt. 

(BEGIN VIDEO CLIP)

REP. MICHELE BACHMANN (R-MN):  We need Roy Blunt in the U.S. Senate. 

(END VIDEO CLIP)

MADDOW:  But you‘re supposed to be running the tea party caucus.  Tea parties were (UNINTELLIGIBLE).  They love Michele Bachmann.  They‘re mad at Michele Bachmann.  They love her.  They‘re mad.  They called it a slap in the face, which made for a very interesting ruckus worth paying attention to Republican Senate primary in Missouri. 

Rule number 1,217 about electoral politics, exciting primaries mean more voters.  And that‘s exactly what happened on the Republican side yesterday.  The internecine warfare didn‘t sink Roy Blunt.  He won. 

But among the very paltry 23 percent state-wide turnout yesterday, two out of every three voters came out to vote Republican.  So it wasn‘t really a big exciting deal that a two-thirds Republican electorate ended up also voting for the symbolic anti-health reform thing that Missouri had on the ballot yesterday. 

Republicans want it to be a huge deal but in the overall context, it was essentially a popularity contest for the idea of as yet an implemented health reform only among the most activist Republicans in the state of Missouri. 

What Michael Steele and Mitch McConnell and John Boehner want to froth about as a national referendum on health reform was much closer to a poll of Red Sox fans about how they feel about the Yankees. 

Still, though, an important reminder of rule number 1,218 of electoral politics.  Who‘s voting is just about as important as who‘s running.  As MSNBC‘s Dave Weigel wrote at “Slate.com” this week, during midterm elections, when you don‘t have a president at the top of the ticket, you see a contraction in the electorate. 

The electorate gets smaller.  And when the electorate gets smaller, it boils down to the hardest core of the hard core “I always vote no matter what” voters which means a traditionally more conservative group. 

The way Dave put it at “Slate” yesterday was that Democrats know they‘re facing a whiter, older electorate this year than they faced in 2008.  So the smaller the expected turnout, the more you should expect to see political tactics that target older, whiter people. 

And that is starting to explain a lot of what‘s been going on this year so far heading into these midterms. 

Joining us now for the interview is my friend, Democratic political strategist and author of the book “Foxes in the Henhouse: How the Republicans Stole the South and Heartland and What the Democrats Must Do to Run Them Out,” Mr. Dave “Mudcat” Saunders.  Hi, Mudcat.  It‘s great to see you.

DAVE “MUDCAT” SAUNDERS, DEMOCRATIC POLITICAL STRATEGIST AND AUTHOR: 

Great seeing you, Rachel.

MADDOW:  You‘re one of my favorite people to talk to about anything.  And I feel like you and I disagree on just about everything about Democratic political strategy.  And I still think you are one of the best Democratic political strategists in the country. 

SAUNDERS:  That‘s a nice thing to say. 

MADDOW:  You make me think I‘m wrong all the time. 

SAUNDERS:  (UNINTELLIGIBLE) back ways. 

MADDOW:  Let‘s start with this issue about the electorate.  Obviously, you‘re not going to get the same turnout that you got in the presidential year.  What does that mean for political strategy, thinking about smaller electorate in the midterms? 

SAUNDERS:  Well, you know, personally, this health care reform deal - and there‘s been so much misinformation out there, twisted information.  First off, I don‘t think the Democrats ought to be on defense about it. 

MADDOW:  OK. 

SAUNDERS:  And the whole deal of politics, electoral politics - I‘m not a civics professor.  I‘m a campaigner.  And electoral politics are about offense.  And we‘ve got to get away from this health care argument. 

Where I come from, in southwest Virginia, you can‘t - you can‘t

find anybody that supports it with a search warrant.  I mean they‘re just

not there.  And it‘s because of misinformation.  And, you know -

MADDOW:  But you think Democrats shouldn‘t try to counter the misinformation if you‘re explaining you‘re losing that whole idea.  Just don‘t talk about it. 

SAUNDERS:  Listen, it‘s the economy.  It‘s what it is.  If you want to hear the issues, let‘s hit the economy.  Let‘s talk about job loss in America.  Let‘s talk about, you know, things that mean a lot to Middle America. 

An, of course, you know, the president‘s numbers are low with white working class Americans.  And that‘s the only way that he‘s going to get on this is - just bust, you know, the economy. 

MADDOW:  But how do you end up winning political points talking about the economy when the economy stinks so bad?  I mean, how do you (UNINTELLIGIBLE) when you‘re the party in power, when you‘re president? 

(CROSS TALK)

SAUNDERS:  Well, it depends.  You know, I come from the Jim Webb school of populism, you know, basic Jacksonian democracy, social justice and economic fairness.  Economic fairness does not exist. 

You know, where I live or anywhere else, you know, throughout mainstream America, it‘s gone.  I don‘t know why somebody hasn‘t, you know, started talking about bringing some of these jobs home. 

And, you know, this global economy theory - that‘s all it‘s ever been - is a theory.  And, you know, that‘s, you know, what I would go with.  Of course, you know, you made a great point there and the gentleman from “Slate.” 

If I was running a campaign for somebody this cycle, my focus would be GOTV.  You know, you‘ve got to get your pay (UNINTELLIGIBLE).  And you know, Obama had such an organization.  I mean, they got the names.  They‘ve got - and fortunately the Democrats have enough money that they can organize great GOTV programs. 

MADDOW:  So you think the machine that literally turned out voters for Obama, not just the Obama campaign sort of message and strategy side, but the people who actually went door to door and got voters out - you think that should be sort of reanimated? 

SAUNDERS:  It can‘t be done here. 

MADDOW:  For other Democrats -

SAUNDERS:  It cannot be done without Obama on the ticket, but we do have those names. 

MADDOW:  Yes. 

SAUNDERS:  and we can go and we can get those people and hit them. 

MADDOW:  But what‘s your argument to people?  You go - people are not necessarily motivated.  Democratic enthusiasm is low heading into November. 

If you‘re training door knockers -

SAUNDERS:  Everybody‘s enthusiasm is low except -

MADDOW:  Yes.

SAUNDERS:  For the tea party.  I mean you have to remember in 2008, you know, we were all standing up screaming.  You know?  Yes, we can.  But now, you know, this tea party people are the only ones hollering. 

MADDOW:  Yes. 

SAUNDERS:  There is no enthusiasm in the Republican Party. 

MADDOW:  How do you run and get out the vote efforts now for Democratic candidates then?  How do you get voters enthused enough to actually take time out of the day to go vote in November?  What do you tell them? 

SAUNDERS:  Well, you start talking about issues that hit high like the lack of economic fairness.  That‘s what you talk about.  You talk about jobs.  You talk about how we‘re going to pull out of this thing. 

I mean people out here are hurting, Rachel.  I was noticing the other day suicide rates are way up in rural America.  And I mean it‘s that tough.  And that‘s what we got to do.  We have to talk about - we don‘t make anything anymore. 

And you know, you can‘t do that for ever.  You can‘t just buy, buy, buy and not make anything.  And I‘m, you know, a strong believer - and I can‘t believe that the Democrats haven‘t hit on it yet, somebody has to say, hey, what can we do to get these jobs home?  Some of them, anyway. 

I understand the importance of a global economy.  I do.  But I also understand the importance of taking care of our own.  And there are a lot of people out there hurting.  They don‘t understand it. 

MADDOW:  And the way the Democrats are running for reelection or the way that Democrats like President Obama going around trying to fire up Democratic base voters for this election to talk about that is just talking about that as a need for America to get back on track on those things? 

Or should they be pushing a specific legislative agenda saying Democrats in Congress pledge to X, Y and Z about bringing the jobs home, about taking care of (UNINTELLIGIBLE)? 

SAUNDERS:  I don‘t think that mainstream America right now believes anything.  I think that - I mean, it‘s tea party movement.  It‘s a greatest thing that ever happened to the Democrats, you know, without question. 

I mean this girl, Sharron Angle out in Las Vegas in Nevada.  I mean, she‘s a Christian reconstructionist.  Now, do you know what that is? 

MADDOW:  No, I probably should but -

SAUNDERS:  What it is it means that they believe that, first off, you‘re going to hell. 

MADDOW:  Me?  All of us? 

(CROSS TALK)

SAUNDERS:  Me, too.  Yes.  And probably 95 percent of the electorate in Nevada is going to hell.  And I mean for her to come out with comments like, you know, that she was preparing and had this calling to run against Sen. Harry Reid.  And she was preparing for it just like Moses prepared, you know, to lead the people through the wilderness for 40 years and to quote, (UNINTELLIGIBLE) the only place that didn‘t have oil. 

She was being - you know, these experiences of Paul and even Jesus.  You know, I didn‘t know Jesus needed training to be son of God until I heard Sharron Angle.  But I mean some of this stuff - I mean it‘s - it is helping the Democrats. 

MADDOW:  Yes. 

SAUNDERS:  And -

MADDOW:  So that they can capitalize on it and get out voters in November. 

SAUNDERS:  Well, I think the get out the vote - the deal is, you know, your Democrats who show up for primaries, obviously, are the first choices. 

But you know, politics has become a lot like Amway.  And, you know -

MADDOW:  You tell two people.  I mean, that‘s the wrong slogan, but yes, the pyramid. 

SAUNDERS:  Sure. 

MADDOW:  Mudcat Saunders, Democratic political strategist.  I could talk to you all night.  It‘s good to see you haven‘t been here long enough.  We‘ll get you back soon. 

SAUNDERS:  I‘ll be back. 

MADDOW:  Great to see you, Mudcat. 

SAUNDERS:  See you. 

MADDOW:  OK.  Great. 

SAUNDERS:  Thank you. 

MADDOW:  All right.  Coming up on “COUNTDOWN,” the controversy surrounding the decision to build a mosque near Ground Zero.  Keith addresses that with hip-hop entrepreneur, Russell Simmons. 

And coming up on this show, the latest news we‘re hearing about the BP oil disaster is good.  Good, but weird.  But still good, we think.  A sugar-free report about the real situation in the gulf is coming up next.

(COMMERCIAL BREAK)

MADDOW:  Did you hear today that the oil in the gulf is gone?  Really? 

Most of it gone?  Ann Thompson is our guest from Venice, Louisiana, next. 

(COMMERCIAL BREAK)

MADDOW:  So the polite way to describe official estimates of the size of the BP oil disaster is fungible.  The non-polite way to polite way to describe these estimates is “funny,” not funny, ha ha, but “funny” as in funny screwed up. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Now, we know that about 1,000 barrels a day leaking from the actual well.  We knew that there was 1,000 barrels a day leaking.  They say now that NOAA believes that that number could be 5,000 barrels.  And there‘s another place that‘s actually leaking. 

They now estimate that contrary to your early estimates, it is not 5,000 barrels of oil leaking into the gulf from this well every day.  They estimate it is between 12,000 and 19,000. 

(END VIDEO CLIP)

MADDOW:  So it started 1,000 to 5,000 barrels.  That was in April.  By the next month, it was at 12,000 to 19,000 barrels.  By the month after that, it was 35,000 to a max of 60,000 barrels per day.  Now, a new estimate, 62,000 barrels a day. 

It is like watching the cost of your new kitchen over the course of the remodeling.  Up, up, up, up.  But we‘ve got the new estimate of how much has been spilling, the resultant new estimate of how much in total has spilled in the gulf. 

And that set the stage for the weirdest news day yet in the BP oil disaster.  Today was the day we were told that the oil is gone.  Gone?  The government reported today that 75 percent of the oil has essentially been taken care of or is well on the way of being taken care of in one way or another. 

Now, on the one hand, great.  On the other hand, huh?  The report says about a quarter of all the oil was sucked up through the cap, skimmed or burned.  Another quarter of the oil was naturally dispersed through Mother Nature‘s kind, warm, wavy waves. 

And a little less than a quarter was dispersed, not just by warm water and waves, but through human operations, meaning a titanic volume of chemical dispersants whose long-term effects are unknown. 

According to the great - wait - what - report of 2010, the remaining 26 percent of the oil is stuck in the gulf coast on the surface of the ocean in the form of tar balls or washed into the marsh lands and beaches and buried in the sand. 

The report says this residual 26 percent is in the process of being degraded.  And when you are talking about a five-million barrel disaster, that 26 percent, of course, means there is a lot of degrading to hope for. 

Joining us now live from Venice, Louisiana is NBC chief environmental affairs correspondent, Anne Thompson.  Anne, thanks very much for joining us tonight. 

ANNE THOMPSON, NBC CHIEF ENVIRONMENTAL AFFAIRS CORRESPONDENT:  Oh, it is a pleasure, Rachel. 

MADDOW:  Anne, how is the news from the administration being received in Venice on how much oil is left in the gulf? 

THOMPSON:  I would say it is being received with a healthy dose of skepticism.  These are people who go out every day into the waters of the gulf as members of the Vessels of Opportunity Program here.  And they are seeing oil primarily near shore. 

They are not seeing as much oil come onshore as they have, but it is still here.  There are still tar balls washing up on sand bars.  There is still plenty of oil in marshes here in Venice and up in Barataria Bay.  The oil has not disappeared. 

But the other thing is, is that there‘s just a lack of trust on this issue.  I mean, as you pointed out when this crisis started, first, they were told there was no leak.  Then, there was a leak.  It was 1,000 to 5,000 barrels a day.  Then, there were several different estimates. 

And even with the latest flow rate estimate, they say it started leaking at a rate of 62,000 barrels a day.  It finished at 53,000 barrels a day.  The question is, how do you know?  What do you really know? 

The government said today what this report really gives is a snapshot, if you will, of where they think the 4.9 million barrels went.  But more than a snapshot, it really just raises more questions, because for all that oil that is dispersed, where does it go?  What do all those tiny little droplets do?  And those are questions no one can answer yet. 

MADDOW:  Are you also hearing concerns voiced about the long-term impact of dispersants.  That‘s one thing that I know that a lot of fishermen, when I was down there, were talking to me about.  And the government essentially is still saying now, yes, they are doing long-term studies but they don‘t know. 

THOMPSON:  Right.  Very much so.  Yesterday, the EPA came out with its second phase of the study looking at dispersant issue.  They tested all eight dispersants that are available on the market.  They mixed them with Louisiana sweet crude which is what spilled here. 

And they said they found that the oil and the dispersants mixed together were no more toxic than the oil itself.  Well, it is sort of like good news/bad news.  That‘s OK except that oil is toxic. 

So it doesn‘t mean it is harmless and that‘s just in the short term situation.  They don‘t know the long-term impact.  And that‘s what really scares people here because it‘s not just that they‘ve lost their ability to fish for 107 days, actually, probably 100 days of the crisis.  But the question is will those fish be back? 

Some of them have short reproductive cycles.  Some have very long reproductive cycles.  And it may be decades before we get a complete picture of what this spill did to this very rich marine life here in the Gulf of Mexico. 

MADDOW:  Not only what it did to the marine life, but also the legal implications, the legal liability for BP in terms of taking care of these people and making the fisheries and making the people who make their living on fisheries whole.  It is an incredible problem. 

One last question for you, Anne.  We heard tonight that Thad Allen authorized has BP to cement the damaged well.  This is not the relief well.  It is the static kill. 

Essentially, at the bottom line, does this mean that we should expect no more leaking oil until they get that relief well down there now in a pretty permanent way? 

THOMPSON:  Yes.  They feel very - they feel very confident that with the successes of the static kill and putting the drilling mud through the blowout preventer and forcing the oil back down through the pipe and into the reservoir, that no more oil from the Macondo well will leak into the Gulf of Mexico. 

They are going to put - they are going to - as an insurance move, they are going to pour cement, the same way they did with the mud, down the top of the well and put a cement plug at the top of the well. 

However, they have to do the relief well.  Thad Allen has said all along even if they plug the well at the top, they still have to plug it from the bottom because it is only then when he will consider this well permanently shut in.  Rachel? 

MADDOW:  NBC news chief environmental affairs correspondent, Anne Thompson, braving the bugs and the heat and the humidity in the late hour for us.  Anne, thank so much.  I really appreciate it. 

THOMPSON:  Take care, Rachel. 

MADDOW:  Indeed.  We will be right back. 

(COMMERCIAL BREAK)

MADDOW:  You really ought to read the Proposition 8 ruling.  It‘s amazing - posted at “MaddowBlog.MSNBC.com.”  “COUNTDOWN WITH KEITH OLBERMANN” starts right now.  Good night.

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

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