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The Rachel Maddow Show, Transcript 04/26/12

Guests: Chris Hayes, David Bullock, Kenji Yoshino

RACHEL MADDOW, HOST: Thanks to you at home for joining us this hour as well. The most important election in the country this year, duh, is obviously going to be Barack Obama versus Mitt Romney, incumbent Democratic president and former Republican governor of Massachusetts squaring off for the top political job in the country and thereby for the political soul of the nation. What`s the second most important election this year, though? It happens in June. It is important in its own right. It`s also important because it`s the one that will probably establish each party`s respected momentum for the whole summer, heading into the final stages of the presidential race. The second most important election of the year would be this one, the one to recall Wisconsin`s Republican Governor Scott Walker. A million Wisconsinites signed their name to get Scott Walker out of office now, for the way he stripped union rights in that state and generally upended Wisconsin`s political way of life and got Wisconsin the worst job record in the country. Mitt Romney, Republican standard bearer for the presidency, calls Scott Walker a hero and man of courage. Scott Walker`s recall election is on June 5th. We`ve been in a busy season for recalls these days. Russell Pearce, head of the Arizona state senate, he`s the guy who rammed through Arizona anti-immigration papers please law. This was Mr. Pearce testifying before Congress this week in a "don`t tread on me" tie. But he wasn`t there as elected official, because even though he used to be the most powerful Republican in Arizona, Russell Pearce was recalled from office back in Arizona, back in November. The great state of Maine, the new hardcore conservative Republican majority there took away the right to vote on the same day that you register, that`s something Mainers had enjoyed for decades without controversy. But the Republicans said voting needs to be harder in Maine. Mainers said poppycock to that and recalled that Republican make voting harder law through a citizen`s referendum back in November. In Ohio, the hardcore conservative Republican majority in Ohio voted to strip union rights in that state kind of like Wisconsin but worse. The Ohio Republicans law never went into effect because it was recalled by more than a 20-point margin in November. Republicans passed it in the legislature. Governor John Kasich signed it, but voters rejected it like an organ transplant from someone with the wrong blood type. The Ohio union-stripping law never took effect. The great state of Michigan has the same kind of process for recalls. In Michigan, signatures from 5 percent of the number of people who voted in the last race for governor is what it takes to get a law on the ballot for recall. And like Ohio, if you get a law on the ballot for recall, that effort stops the law in its tracks. The law is no longer enforced. The law can`t be enforced anymore until after people get a chance to vote on it. That`s the way it works in Ohio. In Ohio, I think 6 percent of signatures. That`s the way it works in Michigan with 5 percent of signatures. But in Michigan, February 29th this year without any fanfare, we saw in Ohio or Wisconsin, frankly, these Michiganders turned insignificant to recall a new law passed by the Republicans there. The caravan to the state capitol in Lansing, they carted these boxes to the board of state canvassers. And this week, they found out they got enough signatures. They had more than enough by about 40,000. The staff of the state canvasser said they`ve gone through the signatures. They`ve totaled up the real ones, they thrown out signatures that they could not verify. They advised the board of canvassers that aid there were more than enough signatures, more than enough to put this Michigan law on hold and let the people decide with a vote or maybe not. Even though the people gathered enough signatures and even though the staff of canvassers said they have enough signatures, the petition drive to recall this Michigan law was rejected today because the font on the petition was too small. Seriously, font size. A group calling itself the Citizens for Fiscal Responsibility challenged the petitions in Michigan because they said the font size was too small. The two Democrats on the board voted to let the petitions go forward. The two Republicans voted know. Quote, "Board members Jeffrey Timmer and Norman Shinkle said the law regarding the petition is clear, and they must follow it to the letter." Now, as we reported it in the past, Jeffrey Timmer, one of these two Republicans, he`s one of the three partners in a Republican consulting firm that was involved in bringing the font size challenge to the petition today. So, these challengers, these Citizens for Fiscal Responsibility, they live inside this guy`s Republican consulting firm. Their address and their phone number are the same as the address and phone number for the consulting firm that`s run by Jeffrey Timmer. Jeffrey Timmer, Republican strategist and Republican member of the board of canvassers. So, think about this. He is ruling yes or no on a font size challenge brought by a group that is operating out of his own Republican consulting firm. We have been wondering whether Mr. Timmer would recuse himself from this decision because of the obvious conflict of interest or whether he would stay in the game as effectively both the pitcher and umpire. Now, we can tell you he stayed in the game. He joined his follow Republican in even partisan split. Democrats voting to put the Republican law up for appeal and Republicans, including Republican Jeff Timmer saying, no, no, the font size is too small. It doesn`t matter how many signatures you turned in, the law stands, no recall. Here is how the decision was reported in the local press. This is WXYZ in Lansing. (BEGIN VIDEO CLIP) CROWD: Shame, shame, shame. Shame, shame, shame. Shame, shame, shame. Shame, shame, shame. REPORTER: Yes, you see, they`re just walking right up to the board right there. This really disrupted the hearing. Listen to this. UNIDENTIFIED FEMALE: The board will take a 10-minute recess. REPORTER: And that was it. They`re like, look, we`re going to take a recess on this. (END VIDEO CLIP) MADDOW: Yes, we`re going to take a little recess. Democracy, wait right here until we decide on something else, OK? The law at stake here is an important one. Right now, 21 states are in total Republican control. The whole legislature and the governorship are Republican. And since the big Republican wins that made a lot of that possible in 2010, since that great red tide in the mid-term elections in 2010, Republicans have been using their control over these states to pursue some pretty radical policy changes. They have turned state houses into a nonstop anti-abortion-paloza, going after abortion rights at a rate unprecedented since Roe versus Wade. More than 90 anti-abortion laws turned into law last years alone. The aforementioned papers please law, SB-1070, pioneered in Arizona, imitated in Alabama and South Carolina and elsewhere, it is currently having its fate decided at the United States Supreme Court. They strip union rights in Ohio before the people took them back. They stripped union rights in Wisconsin, where it`s likely to end Scott Walker`s time in office before the scheduled close of his first term. But this Michigan law that we`re talking about in Michigan is one that the people are trying to overturn in Michigan, this Michigan law is in my opinion the single most radical thing done by any of all red states since 2010. This law, it`s described as Michigan`s emergency manager law. It gets rid of local democracy. It lets the state declare your town to be too broken, too financially broken for you to be allowed voting rights anymore. You`re not allowed to have elected representation anymore. Your right to support what happens in your town, your mayor, et cetera, effectively nullified by the state. Instead, Republican Governor Rick Snyder appoints a single so-called emergency manner who gets put in unilateral control of just about everything emergency or not. We have seen this at its extreme in Benton Harbor, Michigan, where the emergency manager stripped all power from the elected mayor and commission. After being stripped all power, the elected commissioners tried to test that out. That can`t be right. We were elected. You can`t strip us of that power. They decided to test that out by declaring a symbolic observation of Constitution Week in Benton Harbor. The emergency manager said, no, you can`t do that. They overturned that vote. There is no commission. Forget Constitution Week, there is an overseer in charge with unilateral authority. We`ve also seen the law at work more quietly some times at places in Flint, Michigan and Pontiac. In the city of Flint last night, on the eve of today`s hearing, on whether the emergency manager law was going to get recalled -- last night, with the prospect of the emergency manager law put on ice until voters can have their say on it, last night with every emergency manager in the state, having his unilateral authority cut off within hours, last night in Flint, the emergency manager there posted, all of a sudden, posted a dozen new unilateral orders, including several affecting union contracts of public workers. Flint`s emergency manager says the decision to post all those orders, including the ones that rewrote the union contracts had nothing to do with today`s hearing. He said he`s been working on those orders for a while. It was just a coincidence of the timing. After we saw the story in flint, we checked with the Web site for the city of Pontiac, which also has an emergency manager, a guy who once joked about himself as the tyrant in Pontiac. And hey, the ha-ha so funny tyrant in Pontiac also posted a slew of brand new orders yesterday, five of them affecting union contracts. The contracts of union workers and retired employees, they were all dated the night before the hearing where everybody thought that recall was going to be given the go ahead. Well, it looked like enough signatures were in. Enough signatures were in. It looked like the state was going to have to put on ice, freeze that law that gave the emergency manager the power to issue those orders, to rewrite those contracts. We have asked Pontiac`s emergency manager about the timing of those orders, whether the timing has anything to do with the hearing scheduled for today. If he answers, we will let you know. This week, we sent a couple producers from this show to Michigan to try to learn more about Michigan`s radical emergency manager law. Talking with local elected mayors about the law, we heard a couple things over and over again. A, the emergency manager law is not democratic, democratic small d. It is not democracy. And, B, their towns and many, many Detroit towns are being facing taken over, too. This will not be a short list of towns affected. Here`s Kyle Stack, mayor of Trenton, Michigan. (BEGIN VIDEO CLIP) MAYOR KYLE STACK, TRENTON, MICHIGAN: We don`t always tell the state of Michigan what they need to do. I think cities can have better jurisdiction over their own areas. They know what needs to be done. They know where we need to go with it. We will probably all be in line the way it`s going, because I talked to a few of the mayors here, and we all have money issues. (END VIDEO CLIP) MADDOW: We`ll probably all going to be in line form, for takeover. If you drive out to Detroit which this month turned its finances over to the state for supervision, if you drive out to Detroit, you come to town after town under some form of emergency management, some form of state takeover, whether actual emergency manager or just a consent argument with the state, do what the state says, or else. And it`s not just Michigan, the stage is set for some other states, too, under various forms of emergency manager laws in those states. The capital of Pennsylvania for example, the city of Harrisburg becoming exhibit A outside Michigan. The question for Michigan and other states looking at this as a potential model is not whether cities and towns are in good shape or bad shape, the question is whether we use democracy as the way we fix problems in this country or whether democracy itself is a problem, whether this pesky thing about people voting for people to represent them must be gotten rid of in order for us to do what we want to do, whether that experience in governance is over and we govern in a new way in America now. Joining us is the Reverend David Bullock. He`s pastor of the Greater St. Matthew Baptist Church Highland Park. And he`s the president of the Highland Park NAACP, and he`s the president of the Detroit chapter of the Rainbow/Push Coalition. Reverend Bullock, thank you for being here. REV. DAVID BULLOCK, RAINBOW/PUSH COALITION: Rachel , thank you for having me on the show. MADDOW: That was a big mouthful. What I just about what was going on, that was amazing. That was amazing. In terms of the way, this has unfolded, did in Michigan -- is that -- did I say anything contrary to your understanding what is going on? BULLOCK: No, that was a great analysis. The only thing I would add to that is we have seen public act four on emergency management rolled out in a way that is also racial. Benton Harbor, African-American population is very high. Detroit, African-American very high. Highland Park, Flint, Pontiac -- these are cities with a high percentage of African-Americans and Democratic voters. And so, not only is it anti-Democratic, it seems to have a racial undertone in the way the legislation has been implemented that has lulled many of us to sleep. And so, now, on the back end of this, we`re seeing that it`s hitting African-Americans, it`s hitting low income communities, it`s high Democratic Party voting communities, it`s hitting labor. This is not what democracy looks like. MADDOW: Obviously, in a lot of towns facing these kinds of takeovers, facing having their local voting rights overruled, there are big financial problems. There`s a lot of different kinds in all of these cities. Do you think that the concern about the overall health of municipalities in Michigan is primary in people`s minds or with the emergency manager law, are people worried about losing their rights? What do you see as the balance between those two levels of concern? Obviously, both of them have a big impact on people`s day-to-day lives. BULLOCK: Look, this is a false dilemma. We don`t need financial stability. We need economic recovery. If you want to help Detroit, Flint and Benton Harbor, Saginaw, if you want to help the cities in Michigan, let`s deal with foreclosure -- 90,000 foreclosures in the city of Detroit. That`s 90,000 forced evictions in the last three years. So, if you look at 300,000 people leaving one city, you`re seeing the tax base leave. So, this city is not in financial strain because of mismanagement, because people are incompetent. That is not the right analysis. We have to deal with foreclosure. We got to deal with insurance red lining. And so, what the state should be doing is helping to -- the federal government, county government and state government, to reinvest in these cities. We -- Michigan is a manufacturing state. Really, a one industry state. And so, as the automotive industry, we saw manufacturing meltdown, we saw plants go from Michigan to Mexico. So, that`s trade policy. This is not incompetence in Detroit. (CROSSTALK) MADDOW: -- down to economic recovery in Michigan. BULLOCK: Well, it`s coming back, but it`s not coming back fast enough. The jobs are not -- we lost over 300,000 manufacturing jobs. If 50,000 or 100,000 come back, you`ve still got a minus and you still have to deal with the 90,000 vacant lots and vacant homes in the city of Detroit, insurance red lining, the foreclosure. And we`ve been saying this all along. First of all, we don`t need financial stability, we need economic recovery. Two, there`s no connection between throwing democracy out and fixing the financial crisis. This is bad public policy. Where -- who drew this play? I mean, what`s really going on? In Egypt, it was pharaoh. In the South, slave masters and overseers. And now, in Michigan, it`s emergency dictators. I mean, what kind of public policy says we continue to cut, cut police, cut fire, cut city workers and somehow we`ll stabilize the city and people will want to move back into it. This is the bad public policy at its best. MADDOW: Reverend David Bullock, pastor in Highland Park, president of that city`s NAACP, president of the Detroit chapter of the Rainbow/Push Coalition -- I understand, sir, that this decision on not putting the emergency manager law on the ballot is not the end of it, that there` likely to be litigation. This is likely to go into the courts. I have a feeling we`re going to be continuing to talk to you about it as it unfolds. Thank you. BULLOCK: Thank you so much. We`re going to litigate, we`re going to agitate and we`re going to demonstrate. And this is not the last you will see of the fight for democracy in Michigan. We`re not giving up. MADDOW: Reverend Bullock, thank you. Thank you, sir. BULLOCK: All right. We got Chris Hayes still ahead. We`ve got a rather strange and awesome best new thing in the world international edition on tape. It`s all ahead. Stay with us. (COMMERCIAL BREAK) MADDOW: Everyday, between now and Election Day in November, you`re going to hear something like the Romney campaign today did blah, blah, blah. Or the Obama campaign today did blah, blah, blah. It`s not just things done or said by the candidate. It`s actually news made by the campaign in some way. But there`s a practical, logistical nuts and bolts way that campaigns do stuff that makes news. And it`s a little bit weird when you are participating in it. I mean, covering the campaign firsthand right now pretty much means doing this everyday. (AUDIO CLIP PLAYS) MADDOW: Is the what it was like to dial into the Romney campaign conference call today. This is the actual sound from the start of that conference call. This is what covering the campaign is like now. Yes, I do think that is the version of "Candle in the Wind" by Elton John. (BEGIN AUDIO CLIP) OPERATOR: Ladies and gentlemen, thank you for joining the Obama`s failed foreign policy conference call. Your host for today, Amanda Henneberg (ph) will now begin. AMANDA HENNEBERG, ROMNEY CAMPAIGN: Hey, guys. It`s Amanda from the campaign. Thanks so much for getting on the call. I have with me here Alex Wong (ph), part of our policy shop. And additionally, we have Dan Senor on the line, Ambassador Pierre Prosper and Secretary John Layman (ph). I am going to turn it over to Dan Senor. (END AUDIO CLIP) MADDOW: That`s what it`s like. That`s what it`s like. They do these calls almost everyday and everybody calls in and listens to what they have to say. That`s how we report what the campaign said today. You know, once upon a time, I guess it was faxing. Every once in a while, it still is the candidate himself or herself talking in the back of the bus or plane with reporters. But mostly, it`s like this on speaker phone. And the reason -- what did they call this one again today? What do they call it? (BEGIN AUDIO CLIP) OPERATOR: Ladies and gentlemen, thank you for joining the Obama`s failed foreign policy conference call. Your host for today, Amanda Henneberg (ph) will now begin. (END AUDIO CLIP) MADDOW: Obama`s failed foreign policy conference call today is because they`re doing something they call bracketing. Whatever the Obama administration does something, the Romney campaign plans a response thing on the same subject. So, Vice President Biden laying out the Obama campaign`s narrative on foreign policy today, and then the Romney conference call is about giving the Romney campaign counter narrative on that same subject, on foreign policy. Here was the problem today though other than the "Candle in the Wind" thing. The Obama campaign/Vice President Biden narrative on the foreign policy today turns out is exactly the same as the supposed counter- narrative from the Romney campaign. Here`s what the vice president said today. (BEGIN VIDEO CLIP) JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: Governor Romney, I think, is counting on collective amnesia of the American people. Americans know -- Americans know that we can`t go back to the future. Back to a foreign policy that would have America go it alone, shout to the world, you`re either with us or against us. Lash out first and ask the hard questions later, if they get asked at all. Governor Romney`s national security policies, in our view, would return us to a past we`ve worked so hard to move beyond. (END VIDEO CLIP) MADDOW: In other words, the charge from the Obama-Biden campaign is that Mitt Romney has George W. Bush foreign policy agenda. He would take us back to George W. Bush`s foreign policy. Now, Romney has 24 announced advisors on foreign policy. Seventeen of the 24 are George W. Bush administration foreign policy people. And the Obama campaign sees that as a vulnerability. That was their narrative today, hitting Mitt Romney for being advised by all these George W. Bush people. The counter-narrative from the Romney campaign on that? (BEGIN AUDIO CLIP) HENNEBERG: We have Dan Senor on the line, Ambassador Pierre Prosper and Secretary John Layman. (END AUDIO CLIP) MADDOW: Two of the three advisors the Romney campaign put out to counter the narrative that Mr. Romney is going to have a George W. Bush foreign policy, two of those Romney advisers, two of the three, were George W. Bush for foreign policy guys, Dan Senor and Pierre Prosper. Dan Senor was the guy in charge of telling everybody that the Iraq war was awesome throughout 2003 and 2004. And Pierre Prosper was appointed by George W. Bush to be America`s ambassador to the world on war crime issues while the Bush administration was setting up secret prisons and torturing people all over the world. But least you believe that Mitt Romney`s foreign policy will be anything like George Bush`s foreign policy let these George W. Bush administration officials who are advising Mitt Romney assure you that that is definitely not the case. Joining us now is Chris Hayes, host of "UP WITH CHRIS HAYES," which you can watch every Saturday and Sunday, at 8:00 a.m. Eastern here on MSNBC. Mr. Hayes, thank you for being here. CHRIS HAYES, MSNBC HOST: Ms. Maddow, it`s always a pleasure. MADDOW: Is this a situation where we have two worlds that don`t overlap? And so, having the Iraq war spokesman speaking on your behalf doesn`t seem like such a bad thing to Republicans? HAYES: I have pondered this for a long time. And I genuinely don`t understand this. Because I actually think, when you would watch the Republican primary debates and they would turn to foreign policy, I would constantly say to myself, well, there`s got to be some space between Ron Paul and Dick Cheney and no one is occupying it on stage, right? It`s either an incredibly radical anti-imperialist agenda, isolationist agenda, whatever you call it of Ron Paul, which is, you know, not majority position of American politics or it`s the most bellicose Dick Cheney, neoconservative line that seems to have learned nothing from the lessons of Iraq, or the foreign engagements. And the fact of the matter is, the space between those are occupied by the president of the United States, right? MADDOW: Yes. HAYES: So, they have a strategic problem which they need to distinguish themselves from the sitting president. And so, the way they`ve done that and partly, this has to do with the nature of the GOP coalition, is that they just gotten the old band back together. Those are the people running things in foreign policy. If you want to know what foreign policy will look like in Romney campaign, don`t listen to Mitt Romney. Because foreign policy unlike domestic policy where there are constituencies that you really have to pay tension to, foreign policy is what consensus among elite foreign policy thinkers are. And there is no difference in lessons learned, in the world view, in the outlook, in the rhetoric of the Republican Party since Ira to now. MADDOW: The people who emerged from the George Bush administration as full of regret or truth tellers or whistle-blowers, while I think they were rehabilitated in the eyes of liberals who are looking for truth tellers about these sort of things, those people did not end up taking leadership jobs in Republican politics. HAYES: No. And they were essentially cast out. And what you saw, in the wake of Iraq, right, the Democratic primary, let`s remember was a litigation on Iraq. I mean, the reason that Barack Obama is president of the United States is that he got up and said this is a dumb war. I mean, counterfactually, I think that`s indisputable, right? That was litigated on the left. It was never litigated on the right. MADDOW: Yes. HAYES: No one has ever had to face up to what happened, this sort of magnitude of the error is just completely erased by history. It`s like those old Stalinist books where they`re like, just get rid of the people that were disappeared, like it`s just completely disappeared. And so, that`s why you can have -- they think it`s a good idea to have Dan Senor on this line who was the mouthpiece of the coalition authority during what -- someone I think on the Obama campaign said -- was the worst period of American foreign policy in 100 years quite plausibly, which is when the country was descending into chaos. MADDOW: Which is -- which to me -- I mean, it`s doing the tick tock of what happened on the campaign trail today is not always my favorite thing. But the fact that we`ve got Vice President Biden making a speech about warning that Mitt Romney would be going back to the George W. Bush foreign policy and the Romney campaign not seeing that as something that needs to be rebutted but rather something that needs to be discussed seems is the more than just a fight, this is something where people are talking past each other and the Republican world view doesn`t have any idea what to make of Iraq. HAYES: That`s exactly right and I also think it has to do with where they think the domestic median voter is, right? The fact of the matter is, this is -- foreign policy is a niche issue. And you write about this incredibly well in your book, about has it become in some ways a weird niche issue that we all feel disengaged from the waging the wars we have. But the fact of the matter is, the median voters worry about the economy. And so, what foreign policy is signaling to other people in the Republican coalition, that`s what it is about, because it`s vote -- the vote and the election is going to not be decided on that. MADDOW: If you had a job before and you want to get back in government, you vote for me, support me, because I`ll give you -- if you had a job before in Republican foreign policy, I`ll put you back in office. HAYES: People that write about places like Turkey and Pakistan call it the deep state, right? Which is the advisers beneath the level of the people that you know, and that`s how we`re seeing here. This is a Republican deep state on national security. MADDOW: I`ll bring you all back in. Chris Hayes, you are wicked smart. I know you`re like my friend and weird to say. I really like talking to you. HAYES: I love talking to you. MADDOW: "UP WITH CHRIS HAYES," weekend mornings, from 8:00 to 10:00 a.m., right here on MSNBC. It will make you smarter and it will also make you happy. All right. Best new thing in the world is still coming up. Stay with us. (COMMERCIAL BREAK) MADDOW: There is an important universal rule everybody must always remember. You cannot pick your own nickname. Marcel the Shell with shoes on (ph) taught us all this very well. (BEGIN VIDEO CLIP) CHARACTER: Guess what I want but I`m not going to beg for it? UNIDENTIFIED MALE: What? CHARACTER: A nickname. Because you can`t -- you can`t make it for yourself like -- you can make yourself a new hairstyle but you can`t say, now, I go by the name of the general or whatever. UNIDENTIFIED MALE: If you could have a nickname, what would it be? CHARACTER: Ace. (END VIDEO CLIP) MADDOW: Ace. Adorable and true. This advice about not picking your own nickname was not heeded by Republican Congressmen Eric Cantor, Paul Ryan and Kevin McCarthy. A few years ago, they gave themselves the very manly and virile nickname, "The Young Guns." The Young Guns` main objective was to get new Republicans elected to Congress -- not to replace incumbent Republicans but to fill open seats and to unseat Democrats. And then they turned the idea and their self-appointed nickname into this book. The purpose of giving themselves the "The Young Guns" nickname was to project an aura of youth and virility and manliness and excitement and gunnishness which I think what Republicans thought they needed for the 2008 election. This year, Republicans think they need something different. They need to seem less virulently anti-woman. In just a moment, we now will unveil the reincarnation of "The Young Guns." Now, it has 100 percent more pink. (COMMERCIAL BREAK) MADDOW: In September of 1998, two men, John Lawrence and Tyrone Garner were arrested at an apartment in Texas. They are arrested for violating the Texas state law against two people having sex by any means other than the one specific combination that might potentially some day produce a baby. There is a new book out that casts doubt whether or not Mr. Lawrence and Mr. Garner were actually having sex when police burst into Mr. Lawrence`s apartment and arrested them. But in any case that is what they were charged with, two consenting adults charged with having a kind of sex that was illegal in Texas. In 1998, when they were arrested, Mr. Lawrence and Mr. Garner both vowed to contest the fine they were charged and to appeal their case and did appeal it all the way to the United States Supreme Court. In June 1993, nearly five years after they were arrested, the Supreme Court quashed the case against them, struck down the Texas law. (BEGIN VIDEO CLIP) BRIAN WILLIAMS, NBC NEWS ANCHOR: Until today, it was legal for individual states to at least try to legislate what went on in the bedroom. Not anymore. Homosexual conduct is no longer a crime. NBC news justice correspond Pete Williams is with us from the court tonight. Pete, good evening. PETE WILLIAMS, NBC CORRESPONDENT: Brian, good evening to you. People on both sides of this issue are calling it the most significant gay rights decision ever. It says the government cannot use moral grounds to make private sexual conduct illegal. (END VIDEO CLIP) MADDOW: The ruling in Lawrence v. Texas was 6-3. Justices Antoine Scalia and Clarence Thomas, as well as the late Justice William Rehnquist disagreed with the ruling. They thought Texas` law should stands. But they were the minority. They were overruled. This year on the campaign trail, Texas Governor Rick Perry tried to base his case that he should be president in part on his disagreement on that court ruling, his defense of Texas laws regulating the precise kind of sex that you and your partner are allowed by the state to have in your own home. Pennsylvania Senator Rick Santorum also took that position in the campaign. But, alas, that clarion call to limited government and personal liberty was not enough to propel either of those candidates to the presidency. There`s now another big gay rights, civil rights case making its way through the courts that may very well end up being decided by the Supreme Court. And that`s the Prop 8 case. Proposition 8 was the referendum in California in 2008 to take away existing marriage rights from same sex couples. Prop 8 has been in litigation since it passed in 2008. And the case around Prop 8 hinges in part on the question of immutability. Is being gay an immutable characteristic? Can you change it? If you find yourself gay for some reason, do you have to stay that way? One of the arguments the anti-gay rights side makes is that being gay is a choice. So marriage then isn`t a question of equal rights. Everybody has an equal right to get married already, if you want to get married and you`re gay, you can get married, you just have to stop being gay, choose to become straight, now, you can get married, presto change-oh here comes the bride. This is a part of the transcripts from the oral arguments in the trial in the Prop 8 case. Now, the lawyer is arguing on the anti anti-gay side. The lawyer is arguing against gay marriage here and he is questioning an expert, questioning a psychology professor, right? Question: You will find here a document premarked. Can you identify that document? Answer: This is an article by Robert Spitzer published in the archives of sexual behavior in 2003. The title is "Can Some Gay and Lesbians Change Their Sexual Orientation?" Question: You are a familiar with the author, correct? He is a very prominent psychiatrist who is certainly considered to be an expert in his field. Answer: He is a prominent psychiatrist. Question: Please turn to page 413? And please look in the second column, the first full paragraph. And it says, quote, "This study indicates that some gay men and lesbians following reparative therapy report that they have made major changes from a predominantly homosexual orientation to a predominantly heterosexual orientation." So, it was important for the lawyer on the anti-gay side here to get it on the record that this prominent study by this prominent expert psychiatrist proved that gay people can change. It is relatively central to their argument that denying gay people access to marriage isn`t some kind of second class citizenship for gay people. Gay people have first class citizenship. All they have to do is change into straight people and then they can have all the rights they want. Here`s the thing, though, that argument has kind of fallen apart. Dr. Roberts Spitzer, the aforementioned Dr. Robert Spitzer, that prominent psychiatrist quoted there in the Prop 8 trial whose work is supposed to prove that gay people can change themselves into straight people, as we reported last week, Dr. Robert Spitzer recently revealed to the "American Prospect" he would like to retract his study, the one cited in that Prop 8 trial. He says he regrets it, he`d like to retract it and the he basically does not think it qualifies as science. His study was published in this journal "The Archives of Sexual Behavior." The journal`s editor says that it will not formally retract the study, but they are going to publish this letter to the editor from Dr. Spitzer. Kudos and thanks to for being the first to publish the content of Dr. Spitzer`s letter. It is kind of astonishing. Dr. Spitzer writes that there`s no way to determine if the people in his study who said they turned ex-gay were credible when they said it. There`s no way to determine if they were credible when they said they had been cured of the gay. He also goes on to apologize. Look at this, quote, "I believe I owe the gay community an apology for my study making unproven claims of the efficacy of reparative therapy. I apologize to any gay person who wasted time and energy undergoing some form of reparative therapy because they believed that I had proven that reparative therapy works." Wow. If the next big gay rights/civil rights case hinges on the significant way on the idea that you can change being gay if you want to, and if the basis for that claim just evaporated in a puff of, I`m sorry, from Dr. Spitzer -- what does that do to the law here? What does that do to the future of this as a civil rights in the country? Joining us now for the interview tonight is Kenji Yoshino. He`s Chief Justice Earl Warren professor of constitutional law at NYU School of Law. Professor Yoshino, thanks very much for being here. KENJI YOSHINO, NYU SCHOOL OF LAW: Thanks so much for having me. MADDOW: The fact that this study from the early 2000s, the fact it no longer exists for the anti-gay rights side in the Prop 8 case, how do you think that will affect the case going forward? YOSHINO: I think it`s a big deal. So, first of all, the reason immutability is important is because under the Equal Protection Clause of the 14th Amendment, there`s a standard called heightened scrutiny. And there are certain classifications like race, national origin, sex, nonmarital parentage, lineage (ph) that get that scrutiny. The $64,000 question of this case is whether or not sexual orientation is going to be added to that list. And one of the criteria that`s been looked at to determine whether or not a group gets heightened scrutiny is immutability, as you mentioned. So, the fact that Spitzer retracting this and the fact that the testimony in the Prop 8 trial was overwhelming for the fact that sexual orientation is very hard to change could figure into that analysis. MADDOW: Are there other examples of anti-gay side in these important anti-gay cases, other examples of them citing scientific literature to bolster their side? Didn`t that come as well in the Defense of Marriage Act trial? YOSHINO: Absolutely. And it`s almost worse in sense because Paul Clement for the defendants in the Defense of Marriage Act case cites to Lisa Diamond (ph), who`s a psychologist. It`s the same shtick, you know, that you just talked about, which is, you know, you have this pro gay person because Robert Spitzer was very prominent in getting homosexuality declassified as a mental illness back in 1973 -- MADDOW: And regarded as a hero by gay rights movement. YOSHINO: Absolutely. So, it was like very cruel cut indeed to receive from him, this idea that gay people could actually convert and that`s why the other side made such hay out of this. Very similar move was made with respect to Lisa Diamond, who`s a psychologist out of the University of Utah where Paul Clement who just argued the health care case and Arizona immigration case, so he`s kind of a conservative super lawyer, he cited to her and he said here`s a pro gay scholar and she believes that homosexuality is actually changeable. And this is actually even worse, Rachel, because it`s almost like a Marshall McLuhan moment where, you know, Lisa Diamond actually shows up and says, I`m going to sign this document that is an a complete distortion of everything I`ve done and all my work and including the article that you cite. So, it`s the same thing all over again -- the kind of emperor has no clothes kind of dynamic where we`re gradually realizing that all of these arguments, the anti-gay marriage side has are kind of nothing. MADDOW: One of the reasons that I think you`re the right person to talk to about it, I feel you have an appreciation both for what`s happening in the courts but also for what`s happening in culture and politics and how these things tend to interact. And I guess the thing that is kind of shocking to me the more I look into this, is that I don`t feel like anybody credible believes that gay people can click their heels together and become straight. It`s seen as a quack idea and popularized on the anti-gay and the anti-gay political movement for a reason. But it seems to collapse under the weight of its own ridiculousness. To find out it is central to the courtroom arguments against gay rights as far -- even as far up as these cases that are likely to go to the Supreme Court is surprising. I think just for the base political credibility of that case. I wonder if you see it that way or if there`s something I`m missing. YOSHINO: I guess I would say yes and no to that, Rachel, on the since that that on the one hand, yes, I`ve been actually on the front line of the professorial and trying to argue against the so-called immutability criteria. And because it doesn`t really make that much sense for the reasons that you describe. So, for example we would never say religion is not going to be protected because you can change your religion. So, even if we have a despised religion in this country, we`re still going to protect it under the free exercise clause and the fact that people can convert as they do all the time, isn`t going to actually affect that analysis at all. So, I agree with you, it doesn`t make sense at that level. At the same time, it seems to have this very odd and deep-rooted traction in the case, it quiets people`s fears that their children, for example, are going to grow up gay if they`re exposed to same sex marriage. I think one of the things that we`re going to see in this referendum campaign is the infamous princess ad this little kid comes home to her mother, I just learned in school a king can marry a king, the teacher read me a book and that means I can grow up to marry a princess. And that`s actually been incredibly difficult to overcome for the pro-gay side in referendum after referendum. MADDOW: So, essentially, however it functions in the courtroom, however it functions in terms of the immutability standard and all those other things, ultimately its power is the way it evokes fear and pressures. YOSHINO: Exactly right. MADDOW: Kenji Yoshino, you`re wicked smart. Thank you for being here. Chief Justice Earl Warren professor of constitutional law at NYU School of Law, and somebody I`ve been looking forward to talking about this a long time. Thank you for coming in. YOSHINO: Thanks so much. Nice to see you. MADDOW: All right. Right after the show on "THE LAST WORD," find out what Karl Rove thought about the choice of Dick Cheney as vice president. It`s not what you think. Lawrence O`Donnell has the details on that. And here, best thing in the world, not intended to be a karaoke edition but nobody will stop you if it turns out that way. Stick around. (COMMERCIAL BREAK) MADDOW: This is a story that has a match punchline. Ready? All right. No party wants to be on the losing end of a double-digit gender gap heading into an election. That is precisely where Republicans are right now. Since their strategy of advocating furiously against women`s health and hoping women don`t notice or don`t mind was not working to close that gap, Republicans are now trying something new. They have decided for example to take a u-turn from their previous position and they are deciding now to not block the re-authorization of the Violence Against Women Act, at least not in the Senate. The issue, it looked for weeks like it was poised to become a big partisan political battle when it passed out of committee on a party line vote with zero Republican support. But ultimately, Senate Republicans caved on the Violence Against Women Act. It passed the Senate today on a 68-31 vote, which included 15 Republicans voting yes. But, wait, there is more. The new, now more women-friendly Republican Party is not only no longer blocking the Violence Against Women Act. They`re also creating a brand new Republican group just for ladies. A group of House Republicans created a sort of caucus in 2007 called the Young Guns program. It was a group designed to help and support young awesome Republicans like themselves. Well, today, the Young Guns announced a new program, a young guns program for Republican women called YG Woman Up. It`s supposed to be like saying man-up, but saying it for a woman. Woman-up. Of the 435 members of the House of Representatives, only 78 are women. That`s about 18 percent of the House. So, House Republicans are reaching out with this new Young Guns Women Up group to a constituency that makes up more than half the general population but less than 20 percent of the elected members of the House. Maybe they see this math problem they`re in with women and they want to try to fix it. Well, the Young Guns program has a record on spouting women candidates for office. They have a whole list of candidates they`re backing this election cycle on their Web site. Here`s the math part. They`re supporting 94 Republican candidates this year. They`re supporting 14 women. So, only about 15 percent of the candidates the Young Guns are supporting this year are women. That is a lower proportion than the already really low proportion of women already serving in the House. They`re taking Congress` math problem with women and they`re working to make it worse. Woman-up. This is their big outreach effort. Let`s have even fewer women in Congress than we have there now. If this is what it means to women up, I don`t think this is going to help with the gender problem. I just don`t. (COMMERCIAL BREAK) MADDOW: This is going to seem a little bit backwards, this is the best new thing in the world today. But it starts from a very place. I`ll tell you it ends up somewhere surprising and great, but it starts off somewhere bad. Nine months ago, a Norwegian man who described himself as a militant nationalist, man named Anders Breivik set off a car bomb outside the government building in the capital of Norway, killing eight people. Then he took a ferry to an island where kids were on a Labor Party teen camping trip. He opened fire with multiple high powered weapons. He killed 69 more people there, most of them teenagers, he killed them in a cold-blooded massacre that lasted an hour and a half. So, now, Anders Breivik is on trial for those crimes in Norwegian court. He has admitted the killings but he`s arguing that it was all justified. He says he should not only be acquitted, he should get a medal, because in his twisted mind, he was protecting Norway from multiculturalism. Specifically, Breivik testified last week that he believes Norwegian school children are being brainwashed by a children`s song that`s popular in Norway. It`s essentially the Norwegian version of the Pete Seeger song that`s called "My Rainbow Race". After Breivik singled out that song as particularly offensive to him, look at this -- today, 40,000 people turned out in Oslo to serenade him with that song. Five thousand people RSVP on Facebook that they would turn up. But police say the crowd was eight times that number, 40,000 Norwegian people gathered in a square right next to the first building that Breivik bombed, right near the courthouse where Breivik is on trial. They stood in the rain, carrying roses and they sang him that children`s song that he hates so much. (VIDEO CLIP PLAYS) MADDOW: What you heard at the very end there, a little bit of Norwegian that you heard there. That was the singer who popularized this Peter Seeger song in Norway. He`s a guy named Lillebjorn Nilsen, forgive my pronunciation ,speaking in Norwegian there. What he said at the very end, translates in into it`s "we who win" -- genius, peaceful beautiful serenade to a mad man, best new thing in the world today. All right. That does it for us tonight. We will see you again tomorrow. Now, it`s time for "THE LAST WORD" with Lawrence O`Donnell. Have a great night. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END