The Rachel Maddow Show, Transcript 07/22/15

Guests: Rick Santorum, Neal Katyal

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. I am very excited. I will admit to that. Thank you very much. And thanks to you at home as well for joining us this hour. Black is white, up is down and night is day, dogs and cats living together peacefully. I mean, the news out of Wisconsin today, out of Milwaukee, Wisconsin, is that there may be a freaking lion on the loose in Milwaukee. A lion. A lion. I`m telling you, today is just -- today is a weird day. And not just because Milwaukee apparently has a lion, but also because -- as Chris just mentioned -- Rick Santorum is here. There he is in the green room of he is here to talk to me on purpose and he even knows it`s me. He`s going to be joining us live in the studio in just a few moments. So, we`ve got a lion a loose in Milwaukee, we`ve got Rick Santorum here live in person. And to further prove that today is truly an inside-out, upside-down day, I submit to you this. New Jersey Governor Chris Christie no longer loves Bruce Springsteen. It is tragic but it is true. I mean, if there was one thing that made sense in this crazy world of ours, it was Chris Christie`s enduring love of Bruce Springsteen. Look at him rocking out with full abandon, right? This is at a Bruce Springsteen concert back in 2000. Listen to how Chris Christie once describes hugging Bruce Springsteen. (BEGIN VIDEO CLIP) GOV. CHRIS CHRISTIE (R), NEW JERSEY: Bruce and I had an opportunity to chat for a while Friday night. We hugged. (LAUGHTER) We hugged. Yes. And I -- he told me it is official. We`re friends. So, the hug was great. When we got home, there was a lot of weeping because of the hug. And the president said, "Why?" I said, "Well, to be honest, I was the one doing the weeping." (END VIDEO CLIP) MADDOW: "I will treasure it forever" is the exact phrase that Chris Christie used to talk about, talking to and being hugged by Bruce Springsteen. "I will treasure it forever." That was just a couple of short years ago. But, now, apparently, that`s over. And here`s how we know -- Chris Christie and his wife recently sat down for a funny/quirky rapid fire style video interview with a conservative news site called LifeZette. They answered answered quick succession, sort of "would you rather" type questions. So, Bradley Cooper versus Anderson Cooper. Ben and Jerry`s versus Baskin Robbins. It was all going awkwardly according to plan until -- (BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: Jon Bon Jovi or Bruce Springsteen? MARY PAT CHRISTIE, GOV. CHRISTIE`S WIFE: Oh, that`s hard. UNIDENTIFIED FEMALE: Is that a hard question? M.P. CHRISTIE: Their music or their person? UNIDENTIFIED FEMALE: No explanation. M.P. CHRISTIE: Bon Jovi. GOV. CHRISTIE: Bon Jovi. (END VIDEO CLIP) MADDOW: After everything they`ve been through, after the hug, after the weeping, after I`ll treasure. But honestly, throughout this whole video, not just the heartbreaking Bruce Springsteen part of it, throughout the whole thing, Governor Christie just looks pained. He just looks miserable. But, apparently, this is the kind of thing you have to do to compete for the presidential nomination this year. And after 130 that Bruce Springsteen concerts, after hugs and weeping, after a lifelong devotion, if you want to compete for the Republican nomination, you have to consider Bruce Springsteen`s politics now apparently. You have to throw Bruce Springsteen under the bus. That`s the kind of thing you have to do. It`s heartbreak. In general, if you really loved somebody personally, somebody in your personal life, you really love them, and they had a chance to run for president, would you want them on run for president? I mean, think about it. In all honesty, it must be absolutely no fun to run for president. Chris Christie does look genuinely pained doing stuff like this quirky video thing today. It`s just hard to run. And not just because of all the scrutiny. Not just because you have to do hokey rapid fire sit- down interviews, where they corner you into dissing things you really do like. Campaigning for president most of the time just doesn`t seem fun. That fact alone should make the Republican Party this year feel quite lucky that they have such an enviable roster of folks who are willing to run. And I say that in all seriousness. The Republican field this year is an embarrassment of riches in terms of real, viable, serious candidates. I mean, take Chris Christie. Chris Christie is running on charisma and his personality. He is a charismatic, natural born politician. He`s a two-term blue state Republican governor. He tends to be a very big crowd pleaser in front of almost any crowd, especially if you can them in to sort of a off-the-cuff conversations. He`s also a legendary fund-raiser. When he was head of the Republican Governors Association, Chris Christie not only set a fundraising record, he also got very unlikely Republican governors elected all over the country, including in blue states, places like Maryland and Massachusetts and Maine. He did that. He made that happen. And that`s the Chris Christie running for the Republican nomination this year. Alongside him, you also have the guy who served for 14 years as the governor of the state of Texas, 14 years. Governed the state through a time when Texas grew its population and grew economically while the rest of the country was going through comparatively hard times. He`s had executive leadership of a large state and a long government over a long period of time. Plus, he`s got amazing hair. I mean, just absolutely top of the line presidential hair. Then, there is the current governor from the almighty swing state of Ohio, right? If one state matters in presidential politicking, it`s Ohio, right? Well, the Ohio governor is Republican this year. He`s been twice elected in Ohio. He has poll numbers through roof in that perfectly purple state. Before being governor, he had a long distinguished career in Congress. He is also incredibly well-connected at the king maker of king makers in Republican politics. He is incredibly well-connected at the FOX News Channel where he hosted his own show in between his congressional career and his gubernatorial career. But it just gets better from there. I mean, if none of those guys appeal to you, the Republican Party this year also has one of the highest profile women in the American business world. And for a party that has been on the wrong end of a very bad gender gap in terms of national election, Carly Fiorina is a hard edged aggressive candidate for the Republicans to put forward when Democrats will probably run the most famous woman in the world as their nominee for president. The Republican Party also running the first ever Indian-American major candidate for president. He is a current governor, he`s young, super energetic, not an old white guy, right? Bobby Jindal is also a fire brand, super uncompromising religious conservative who talks about God and religion and being born again with incredible ease, basically every time he talks about anything and that can be a very important quality to a big swath of the Republican base in particular. In addition to all those candidates, they`ve also got the biggest foreign policy hawk in Republican politics who`s not named John McCain. I mean, he is the biggest forest policy hawk in Congress alongside his best friend John McCain. John McCain`s already been the Republican nominee. They weren`t going to make him the nominee again. But the only other person with the same kind of mantle as John McCain on foreign policy and national security issues and enthusiasm for wars of all kinds is Senator Lindsey Graham. He is 18 years younger than his best friend John McCain. And this year, it`s Lindsey Graham who is running for the nomination. And also in the Republican race this year, they`ve got the guy who came in second the last time around. The guy who won Iowa last time around, who won 11 states. The guy who was the last candidate standing in the Republican primary against Mitt Romney. That would be Rick Santorum. And he has been pointing out on the campaign trail if you look at the modern history of Republican nominees for president, the person who eventually ended up getting the nomination and almost every modern Republican primary was either a vice president, a son of a former president, or the guy who came in second in the previous Republican primary who decided to take another shot at getting the nomination. Well, this year, we have two of the three in the running. We don`t have a Republican vice president running, but we`ve got a son of a former president running in the form of Jeb Bush. And we`ve got the guy who came second the last time around, the runner for the nomination from 2012, Rick Santorum. So, there is an embarrassment of riches in terms of who is running on the Republican side. Even if you just look at the small sample of the roster of candidates they are running, on paper, this is kind of as good as it gets in terms of a political field. But here`s the thing -- basically, none of those candidates that I just mentioned are going to be allowed to compete for the Republican presidential nomination. Most if not all of those candidates that I just described, most if not all of them, are going to be excluded from the first Republican presidential debate. They won`t be allowed on the stage. FOX News, of course, is hosting the first Republican primary debate. FOX News has decided that they would only like ten candidates on the stage with that debate. The way they are going to pick the ten candidates, even though there are at least 16 major Republicans running. The way they`re going to pick is they`re taking an average of five most recent national polls leading up to a couple of days before the debate. That`s it, national polls. FOX News hasn`t specified which national polls they`re going to use even though that debate is nine weeks away. The cut-off date for getting in is less than two weeks away. They still haven`t said what polls they`re using. We`ve tried to guess how they might decide who is allowed to debate, to compete for the nomination. We`ve tried to guess using the vague FOX News criteria. We`ve decided to try to figure out what their methodology might be for figuring out who might make it into the debate if the debate were held today. We call at the "who`s allowed to compete cable news derive random number generator", because that`s the title it deserves. And according to that, our sort of best figuring of what FOX News might do, these eight candidates look relatively safe for making the debate but everybody else in the running will be fighting for what we think are the two other podiums. The two other seats on stage that are arguably still up for grabs. The most recent national poll which FOX News may or may not be using to decide who gets into the debate, but the most recent national poll that we used in our random number generator shows an absolutely huge first place lead for New York real estate developer Donald Trump. Mr. Trump is almost doubled his lead over the second and third place candidates in this "Washington Post"/ABC News poll. Mr. Trump is just so far out in advance, it`s hard to imagine everybody catching up to him in time to change anything meaningful at the top of the polls, in time for that first debate. It`s getting so that the fight to even be allowed to compete for the Republican nomination this year, at this moment, which is when it really counts, the fight to be allowed to compete is basically right now a fight to try to capture some of the attention that is going to Donald Trump, try to get one or two of his poll numbers that he doesn`t need because he is so far out in front. That basically fact in Republican politics right now is why this might be the greatest thing that ever happened to Lindsey Graham`s national political ambitions. (BEGIN VIDEO CLIP) DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: He gave me his number. And I found the card. I wrote the number down. I don`t know if it is the right number. Let`s try it. 202 (AUDIO DELETED) I don`t know. Maybe it`s -- three, four years ago so maybe it`s an old number. 202 (AUDIO DELETED) So, I don`t know, give it a shot. Your local politician, you know? He won`t fix anything but at least he`ll talk to you. (END VIDEO CLIP) MADDOW: Donald Trump giving out Lindsey Graham`s personal cell phone number is great for Lindsey Graham, right? Because he`s not going to get in the debate unless something radically changes about Lindsey Graham, his national profile right now. Well, Donald Trump attacking Lindsey Graham like this, it connects their two names in the news headlines. It allowed Lindsey Graham to respond, which he did today with this strange and funny video of him violently attacking an innocent flip phone, saying he`s got to destroy his phone now that Donald Trump gave out the number. That got lots and lots of attention today. How else is Lindsey Graham going to make national news today? Hitting -- (BEGIN VIDEO CLIP) TRUMP: I see Rick Perry the other day. And he is so, you know, he`s doing very poorly in the polls. He put glasses on so people will think he`s smart. And it just doesn`t work. You know, people can see through the glasses. But he`s got the glasses, the whole deal. (END VIDEO CLIP) MADDOW: That insult of Donald Trump toward Rick Perry is the single best thing that ever happened to Rick Perry`s national presidential ambitions, because in response to Donald Trump attacking him, Rick Perry got to hold his big anti-Donald Trump speech today. He made sure to do it, not in South Carolina or in Iowa or South Carolina, but Washington, D.C., because right now, what matters for him is the national press. And the national press tends to hang out in Washington, D.C. I mean, in order to compete this year, you need national attention. The only subject on which Republicans are guaranteed to be able to get national attention is if they are discussing Donald Trump, responding to Donald Trump or engaged in some sort of fight with Donald Trump. That`s the -- that`s Lindsey Graham and Rick Perry, that`s their path right now. I mean, at this point in the race, this far out in the race, national poll numbers ought to be absolutely meaningless. This year, it turns out they`re all that matters, because of FOX News, and the only way to get a bump in national poll numbers seems to be talking about and fighting with and situating yourself somehow in the orbit of Donald Trump. And other candidates are trying to get attention many other ways. John Kasich said today we should start a new ground war in the Middle East right now. We should put American boots on the ground to fight ISIS. Let`s just do it, he said. Jeb Bush went to a fake abortion clinic. One of those clinic that is designed to look like they provide abortions to patients but they do not. This crisis pregnancy centers. Scott Walker is doing events in New Hampshire with former Senator Scott Brown, which is inherently hilarious. I mean, you can do all sorts of funny or outrageous or provocative things. Rick Santorum today said that Iranians don`t care about dying. Iran will use a nuclear weapon. They don`t care about dying. Everybody thought saying that kind of a provocative thing, right? Tripping that sort of wire somewhere in the polity would be enough to get a candidate national attention that would put your name in front of voters and get newspaper headlines and maybe translate into a bump in the polls. It hasn`t turned out that way. If it`s not about Donald Trump honestly at this point, it`s not really registering. Donald Trump is apparently the only on-ramp for candidates who want to be allowed to compete for the Republican presidential nomination. In that kind of environment, where no matter what you said and no matter what you did, it won`t make news unless it`s about Donald Trump. If that were the environment in which you were operating and your political life depended on it, what would you do? How would you deal with those circumstances? Let`s ask Rick Santorum next. (COMMERCIAL BREAK) MADDOW: The most exciting thing is about to happen around here. Look, look, do it. Ha! Senator Rick Santorum is here live. It`s not a cardboard cut out. It`s not a stunt. He`s going to be a guest on our show. I get to ask Rick Santorum anything. It`s so hard to get Republicans on this show. My first question is going to be, why are you here? He`s right here. We`ll be right back. (COMMERCIAL BREAK) MADDOW: Around the time that President Obama was getting ready to nominate Sonia Sotomayor to be a Supreme Court Justice, the political right decided it was very controversial that President Obama said one of the thing he was looking for in a potential Supreme Court justice was that that person should have a sense of empathy. And our friend Michael Steele was chairman of the Republican Party at the time and he got on the radio one day in the midst of kerfuffle and he said this. He said and I quote, "Crazy nonsense empathetic. I`ll give you empathy. Empathize right on your behind." (BEGIN AUDIO CLIP) MICHAEL STEELE, FORMER RNC CHAIRMAN: I`ll give you empathy. Empathize right on your behind. (END AUDIO CLIP) MADDOW: And so, I bought empathizerightonyourbehind.com. We bought that website. Then one day down the road. I didn`t really make pals with Michael Steele, I was able to offer him empathizerightonyourbehind.com. I was able to offer him that website as a gift. It was very satisfying. We also own fredthompsonisinherentlyfunny.com. If I ever meet and make friends with Senator Fred Thompson, I look forward to giving him that web address as well. I also have one that I`ve been holding on to all of these years and hoping to give to Pennsylvania Senator Rick Santorum. In the 2012 race for the Republican presidential nomination, Senator Santorum went to Florida and he gave a stump speech that included this anecdote, where he was talking about long days, door-knocking on the campaign trail and one particularly hot day when a nice lady not only opened her door to him, she invited him in for a glass of water. He says this, quote, "The lady comes back. She hands me the water. I`m patting the dog and taking a drink. The next thing I know, they have warm sensation. And I immediately jump up and there on my tan pants is a wet spot where you don`t want a wet spot. So, I get up and she says let me get that. I said no, that`s OK. I`m fine, thank you. She says I can get a hair dryer. I said no, we`re not going to do that either. Then she offered to have me take my pants off and put them in the dryer. By that time I was almost out the door. I thanked her for the water and the experience and said I`ll be fine. I get out the door and walk out on the sidewalk. I`m halfway through the neighborhood. What do you do?" "The Sarasota Union Tribune" in Florida wrote up that anecdote and then they put this headline on it. "Dog pee can`t stop Santorum." That was the headline in the local paper, which seemed nice, like they got the point of the anecdote, resilience in the face of challenge, but it also sort of seemed unfair. And so, as a sort of gesture of protectionism, we bought dogpeecantstopSantorum.com and I`ve always wanted a chance to offer it to the senator as a gift. I mean no harm. I have kept that URL as redirect to my own page all these years now. Particularly, if you are on the left of the political spectrum, there are a handful of things you probably know instantly when you hear the name Rick Santorum. In 2003, he became nationally famous when he was discussing homosexuality and gay rights with an "Associated Press" reporter. He suggested an equivalence between same sex relationships and in his words, quote, "you know, man on child, man on dog, whatever the case may be." That inspired the best "AP" response I have ever seen transcribed ever. This reporter said in response, quote, "I`m sorry. I didn`t think I was going to be talking about man on dog with a United States senator. It`s sort of freaking me out." After Santorum lost his Senate seat in 2006 and started campaigning for the presidency, he did keep up a hard edge on social issues. (BEGIN VIDEO CLIP) RICK SANTORUM (R), PRESIDENTIAL CANDIDATE: One of the things I will talk about that no president has talked about before is I think the dangers of contraception in this country, the whole sexual libertine idea. Many in the Christian faith have said, "Well, that`s OK. Contraception`s OK." It`s not OK because it`s a license to do things in the sexual realm that is counter to how things are supposed to be. (END VIDEO CLIP) MADDOW: If you know just one thing about Senator Rick Santorum, that right wing cultural warrior stuff is probably what you know. But widen the lens a little when you think about him, because yes, he is running for president again, for a third time this year. And he is the one Republican candidate who says he is in favor of raising the minimum wage. In my view, he is the most effective communicator, the best speaker of all the Republican candidates running for president, and that should count for something, especially in such a large field. He is also right -- absolutely correct on the issue of how badly the FOX News Channel is screwing up the Republican primary this year by saying they`ll only let ten candidates in the debate even though at least 16 are running and they`re going to set the cut-off over who makes and it who doesn`t based on national polling. Rick Santorum was the first Republican candidate to both recognize how wrong that was and to be brave enough to say it out loud, even though that meant criticizing the FOX News Channel out loud. (BEGIN VIDEO CLIP) SANTORUM: In January of 2012, I was at 4 percent in the national polls and I won the Iowa caucuses. I don`t know if I was last in the polls, but I was pretty close to last. And so, the idea that a national poll has any relationship as to the viability of a candidate, ask Rudy Giuliani about it. Ask Phil Graham about it. (END VIDEO CLIP) MADDOW: He`s right. He`s been right on that for weeks and weeks and weeks. National polls are and should be meaningless at this point in the process. It is a perversion of the process for FOX News to say national polls are going to decide who`s allowed to debate and who isn`t. He`s right. That said, Senator Santorum may have been polling at 4 percent nationally when he ran and ultimately came in second to Mitt Romney four years ago. In the national polls now, he`s barely pushing 1 percent. Rick Santorum is in the fight of his political life right now just to stay in the running and be allowed to compete. How did it come to this? And how does he plan to turn things around? Joining us for the interview is the former senator from Pennsylvania and now presidential candidate, Rick Santorum. Senator -- SANTORUM: Love that you`re rubbing your hands there. That`s -- MADDOW: I`m really happy you`re here. SANTORUM: Relishing this opportunity. I`m glad to be here. MADDOW: Other people are not as excited to talk to you as I am? Is that what you`re saying? SANTORUM: No, I think you`re probably as excited as I`ve seen quite sometime, so I`m actually -- I`m encouraged by that. MADDOW: Well, part of that is because Republicans generally don`t want to talk to me and I noticed a change in this at a very specific time. When Rand Paul first ran for Senate, he actually announced his Senate run on my show. We got along great. I used to have him and his dad both on my radio show all the time. Then, we had this difficult interview where he couldn`t answer about the Civil Rights Act. And after that, not only did I never get him back, but I never got back nationally ambitious Republican politicians ever. So, did you just not get that memo? SANTORUM: I must have missed that. But, no, I`m looking forward to the opportunity on get a chance to talk about -- I guess a whole range of issues. And I gave up a lot. MADDOW: You gave up -- you`re with U2. SANTORUM: About two hours ago, I had my picture with Bono. I was at Madison Square Garden with my daughter and we were about to -- you know, go to the concert. But here I am. MADDOW: Thank you. SANTORUM: So, I`m giving up. MADDOW: Thank you very much. What happened to your constituency from 2012. How come you`re not doing better this year? SANTORUM: I would say that most of the voters right now, if you asked them a polling question, this goes to your point which I just heard you say. If you did a national poll and asked them to name the Republican candidates, you would probably get three or four names at most. Most people aren`t paying that close of attention. And as you see with Donald Trump, it`s who is driving national meme that really is getting the attention and getting the numbers. That`s not what I`m -- you know, I`m not driving that national meme right now. I`m focused on what I focused on four years ago, which is doing well in the state of Iowa, building a good organization, the other early primary states, which I`m doing. And if you go back four years ago, Rick Perry came on the stage about this time with tens of billions of dollars. Tops in the polls just after Michele Bachmann had won the Iowa straw poll. Neither of them got a single delegate. We were at 1 percent in Iowa and probably barely 1 percent in the national polls. We got to focus on -- we are going to focus on Iowa. We`re going to do our job. MADDOW: This year, the rules are different. I mean, if you`re not on -- because of that FOX News rule that they`re only taking 10 people. They`re basing on it national polls. I mean, if you`re not there on stage, you and Chris Christie and Rick Perry and Bobby Jindal and all the rest of these people who are probably not going to make the stage, if you guys aren`t there, you`re effectively not running. SANTORUM: I disagree with that. I just think what happens in July and August, it`s like the Las Vegas ad. What happens in Vegas, stays in Vegas. What happens in August, stays in August. I don`t think there really is going to be that much of an impact. Lots of thing are going to happen between now and January. A lots of folks are going to rise, a lots of folks are going to fall. And, you know, I always feel like the focus we`re going to have is trusting the good people of Iowa, which I did last time. That when push comes to shove, and when they start to pay attention on this race, which historically is about two to three weeks out, they`re going to look at the candidate who they think is the best person to be the president of the United States, at a time that is critical of this country. And I feel very confident after having spent the time there. And folks get to know me and kick the tires of all these models in the showroom, that we`re going to do just fine. MADDOW: If -- so, FOX is going to do this thing and I don`t know if CNN will do the same thing, where they`re going to have what everybody has been sort of derisively calling the kids table, where you don`t get to be in the real debate that you`re allowed to be in. SANTORUM: Well, FOX -- I was over at FOX today. I`m obviously here in New York and I was over at FOX today, and they made the point to say, well, we moved to it to 5:00, which is almost quasi-primetime, and that they`re going to be on the same debate stage as the others. It`s going to feel very similar. You know, I was very frank with them. I told them I don`t think that`s a good idea. I don`t think it`s -- MADDOW: Are you going to do it if that`s what it comes to? SANTORUM: Look -- I`m here. I`m going to take every opportunity I can. MADDOW: I`ll go anywhere. SANTORUM: Are you kidding me? MADDOW: Well, if I`m a stepping stone to the kids table at FOX News debate. SANTORUM: Congratulations. MADDOW: If you don`t -- I had an interesting conversation with my staff the other day. We were talking about -- I was making my case to them about the fact that I think you are a good communicator. I disagree with you on almost everything. But I think that you -- I think that a lot of people have worked very hard on their elocution in this round. People are trying to set themselves apart, a lot of people look like high school debate losing team captains right now and you`re very effective communicator. That`s why I think it will hurt you if you don`t get on the debates because I think such an opportunity cost for you. If you don`t win, if you don`t end up in the debates, if don`t end up getting nomination, or nobody picks you as V.P., what else do you want to do? This is the third time you`ve run for president. Second time you run SANTORUM: Second. MADDOW: Second time to run for president. You haven`t been in office since -- SANTORUM: 2007. MADDOW: What else do you want? I mean, do you want to be chairman of the Republican Party? SANTORUM: No. MADDOW: Do you want to stay in national politics? SANTORUM: No. Look, I`ve been pretty clear about this. This is the last race, initial race I`m having at present. I hope to be running for re-election in four years. But if that`s not the case, you know, I`ve given it my shot. And, you know, I`ve got seven kids and an opportunity to serve this country in other ways. And I`ll look for that opportunity in the private sector or, you know, probably in the private sector and do my best as I can, and try to be a good dad and try to be a good citizen of the country. MADDOW: I want to give you the best chance you have at making that debate, because I want you to come up with some -- we`re going to take a commercial break. I would like for to us come up with a way that you can start a very telegenic fight with Donald Trump. So, I think that`s your ticket. SANTORUM: I think I`ve probably been there. I`m the one candidate here who`s done everything not to do that. I really -- I saw four years ago how damaging personal attacks are in a campaign. And I learned a lesson that I`m not going to take bait. I`m not going to take the bait of other candidates and I`m not going to take the bait of the media that says that unless you personally attack someone, you`re not really disagreeing with them. MADDOW: Oh, I don`t need a personal attack. SANTORUM: No, I know. That`s why I`m on your show. I think you keep to the issues and I respect that. MADDOW: Senator Rick Santorum, we`ll be right back with you because I won`t allow to you leave. We`ll be right back. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) SANTORUM: When did it become the law of the land that the Supreme Court has the final say on anything? They cannot have the final say on anything. (APPLAUSE) The American people have the final say on anything. (APPLAUSE) That`s the country I live in. Is that the country you live in? (END VIDEO CLIP) MADDOW: Republican presidential candidate Rick Santorum at the National Right to Life Convention last month speaking to a very excited, hyped crowd about the latest Supreme Court rulings on -- SANTORUM: Is that the country you live in? That the American people have the final say? Of course, it is, right? MADDOW: Well, the Supreme Court is the supreme -- I mean, it is the Supreme Court. SANTORUM: Yes. But it`s not a superior branch of government. I mean, if the Congress comes back and says, you know, we disagree with you and were able to pass a law and get it signed by the president and say, courts, you`re wrong, I mean -- MADDOW: You could not pass a law that could contradict the constitutional ruling of he Supreme Court. SANTORUM: Why not? Why? MADDOW: You can amend the Constitution. SANTORUM: Why? MADDOW: They`re ruling on the constitutionality of that law. SANTORUM: What if they`re doing it with an -- from an unconstitutional basis? I mean -- MADDOW: They decide what`s constitutional. That`s how our government works. SANTORUM: No, no, that`s not necessarily true. The Congress has the right. When I took my oath of office as a United States senator, what did I say? I would uphold the Constitution. And my feeling is, and I think it`s clearly from our founding documents, that the Congress has a right to say what`s constitutional. The president has a right to say what`s constitutional. And that`s part of the dynamic called checks and balances. MADDOW: Yes. But -- I mean, you`re fundamentally wrong on civics, right? If there is, if there is a question as to the constitutionality of a law, it gets adjudicated. SANTORUM: Right. MADDOW: And the second syllable of that word means it get decided in the judiciary, the Supreme Court decides whether or not a law is constitutional. So, you could not now pass a law -- SANTORUM: But if they have -- MADDOW: -- that said we`re banning same sex marriage. SANTORUM: I`ll give you an example. The partial birth abortion statute, which sort of has come to light because of the Planned Parenthood tape, which they obviously used partial birth abortion to deliver some of these babies. The Supreme Court said it was un -- MADDOW: The Planned Parenthood stuff is -- SANTORUM: The Supreme Court said it was unconstitutional. What did as a member of Congress is we passed a law outlawing partial-birth abortion again, and we said to the Supreme Court, you`re wrong. And we actually listed the reasons why we thought the court was wrong. We made a minor -- and I mean really minor change in the bill. Senate passed it. President Bush signed it and -- guess what? The Supreme Court reversed itself. MADDOW: But you`re not talking about changing the constitutional basis on which the Supreme Court decides something. The Supreme Court decides whether or not something is constitutional. SANTORUM: The Congress could you say we disagree with that. MADDOW: Yes. And you`ll -- and if you do it in a way that contradicts the Supreme Court, the Supreme Court wins on the issue of constitutionality. Let`s get on the issue of Supreme Court -- of same sex marriage, which is what this was about. Do you believe Congress could just pass a national ban on same-sex marriage and would it become law? SANTORUM: Well, of course. The Congress could pass anything it wants to pass. Just because the Supreme Court said, well, we don`t think this is right doesn`t limit the Congress` -- doesn`t limit the Congress` ability to pass any law. The Congresses are right to pass whatever they want. The Supreme Court can strike it down again. MADDOW: Yes. SANTORUM: But the Congress has a right to pass it and a right to say to the court, you`re wrong. I mean, when we are -- MADDOW: Would you want them to pass a moot bill that would just -- SANTORUM: It wouldn`t be moot. You never know what the Supreme Court is going to do. Maybe if you -- maybe between the time, and this is, I think could be the case here. Maybe between the time they decided that decision and Congress acted, things could have happened and they could have misread the tea leaves that are going on in America right now, because I think what was going on with this court is what Justice Kennedy was saying. You know, we sort of see this definition of liberty is whatever we want it to be. And this is sort of where the culture is going right now and so this is what we`re going to do. He didn`t tie to it any constitutional basis. There`s no precedent that set -- that gives him the ability to create this new right in the Constitution. And so, if it`s created on a whole cloth, it can be re- created in a different way out of whole cloth. And I think that`s the role of the Congress is to pressure the court to get it right. MADDOW: So, do you mean that you would want different justices in the Supreme Court? You would want this to go back to the same justices and you think you get a different -- SANTORUM: What I would like to see as president, a whole new group of justices. If you have a new group of justices, I think you might very well get a different decision. MADDOW: Can I ask you if you believe people clues to be gay? SANTORUM: You know, I`ve never answered that question because I don`t really know the answer to that question. But I suspect that there`s all sorts of reasons that people end up the way they are. And I`ll sort of leave it at that. MADDOW: But it matters in terms of whether or not -- I mean, legally, in terms of the types of things that we`re describing here, in terms of whether or not the Congress should challenge the Supreme Court on these issues. I mean, if it`s an immutable characteristic. You don`t know if it`s an immutable? SANTORUM: I don`t know. If it is, that leads to other situations. I mean, you know, we have, for example, allowed in the law of the land, we have sex selection abortion. So, you can determine whether one of your children is gay, should we pass a law saying you can`t abort a child because you find out that child is going to be gay? You can`t abort a child because you found out that child is a woman? I mean, those -- how would you feel about a law like that? MADDOW: I mean, whatever is on your slippery slope, you -- SANTORUM: But how would you feel about a law like that? If, in fact, you could identify a gene that`s, you know, obviously, there`s genes that make you a male or a female, you could identify a gene that made a gay or lesbian. MADDOW: But you`re worrying about the consequences of this without saying that you know whether or not it`s true. SANTORUM: Because I don`t. MADDOW: OK. So, do you think that some people choose to be gay? SANTORUM: There are people who are alive today who identified themselves as gay and lesbian and who no longer are. That`s true. I do know -- I`ve met people in that case. So, I guess maybe in that case, may be they did. MADDOW: Do you think people choose to -- people can choose to be heterosexual? You chose -- SANTORUM: All I`m saying, I do know people who have lived a gay lifestyle and no longer live it. MADDOW: Do you believe it can be orchestrated? Like you can make a person -- (CROSSTALK) SANTORUM: Again, I don`t spend a whole lot of time thinking about these things to be very honest. MADDOW: Well, you`re really very interested in gay rights though. I mean, you talk about -- you talk about gay rights all the time. That`s the whole reason you`re a nationally famous figure before you ever decided to run for president. SANTORUM: No, not necessarily. What I talk about -- MADDOW: The man on dog thing, when you talk about the moral equivalent of same sex relationships -- SANTORUM: I didn`t do that. MADDOW: You did. SANTORUM: Actually, if you read the quote, and I challenge you to do it. The reporter actually put the word gay in there. I never said that. What I said is that the United States Supreme Court changes the standard to consensual sexual activity as the standard of privacy or protected under the Constitution. MADDOW: The question you were answering was about whether or not gay people should not have sex, because you said you don`t have a problem with homosexuality. You have a problem with homosexual act. That`s what you said. SANTORUM: Go back -- go back to what I was discussing, which was the Lawrence versus Texas decision. This was all based on a discussion of the Lawrence versus Texas case. And what I said was, if people have the right to consensual activity, then they have the right to and I listed all these different things. By the way, if you look at Justice Scalia`s dissent in Lawrence versus Texas, and, by the way, you looked at Justice White`s majority opinion in the Bowers decision in the 1986 case, which was the previous case on this, it`s almost word for word what I said. The reporter then took us off in a different direction and I said the things that I said. But the primary purpose of what I was talking about was changing the legal standard and that that would create a slippery slope which I think you`re seeing right now, which is -- you know, there are cases before the courts right now trying to change marriage to allow plural marriage. And there will be other things that will come around. And I`m just saying, that the court opened up a Pandora`s box which at the time, Lawrence versus Texas, I said, we would have -- MADDOW: You`re thinking bestiality? SANTORUM: I`m saying is that people will make arguments for consensual activity. That`s what I said. MADDOW: Including -- SANTORUM: What I said was -- (CROSSTALK) SANTORUM: I quoted -- MADDOW: Why did you say the word "dog"? SANTORUM: Because I was quoting -- I was quoting Justice White in his 1986 decision, and that`s why I was referring to his opinion that that was the majority opinion at the time. The -- that`s why I discussed it the way I discussed it. MADDOW: Do you see how gay people -- (CROSSTALK) SANTORUM: I wish -- trust me, I wish I had never said that. MADDOW: You wish you never said it? SANTORUM: Well, it was -- it was a flippant comment made to a reporter who was -- well, not being particularly professional in my opinion in the way she was conducting her interview. But that`s not an excuse for me. I take responsibility for what I said. What I said -- MADDOW: And you regret it? SANTORUM: Absolutely. It was a flippant comment that should not have come out of my mouth. But the substance of what I said, which is what I referred to. I stand by that. I don`t -- I wish I had not said in a flippant term that I did. And I know people were offended by it and I wish you hadn`t said it. MADDOW: Senator Rick Santorum, thank you for being here. SANTORUM: My pleasure. MADDOW: I realize being at the U2 concert will be your worth your while. SANTORUM: Well, you know, just being with my daughter tonight, when I don`t get a chance to do. So -- MADDOW: Bring her back. SANTORUM: I will. MADDOW: Nice to have you. SANTORUM: My pleasure. MADDOW: Thanks a lot. SANTORUM: Thank you. MADDOW: We`ll be right back. Stay with us. (COMMERCIAL BREAK) MADDOW: We have a lot more ahead tonight, including some big news out of the White House, on an issue that could become the next big fight not only in Congress but also in the presidential race. It`s something that President Obama promised he would do on day one of his presidency. He has not yet be able to do it, but he may be about to start. That`s next. Stay with us. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) JON STEWART, THE DAILY SHOW: You don`t have that much time to take away America`s guns, declare martial law and put hard working Americans in FEMA camps. If you`re going to do that, you better -- BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I better get started. STEWART: You`d better get started. Are you feeling -- you know, there`s an ebb and flow to every administration, every president. OBAMA: Right. STEWART: It appears that you`re feeling it a little bit now. You`ve got this deal with Iran worked out. You`ve got your fast track authority. Are you feeling like seven years in, whatever? OBAMA: I finally know what I`m doing? STEWART: I`m figuring this thing out. I`m figuring this out. Is that how you`re -- OBAMA: I tell you. There`s no doubt that you get better as you go along. It`s like any other job. And you get more experience. What I do think has happened is that a lot of the work we did early starts bearing fruit later. And it just so happened over the last couple of months that people are seeing some of the work that we started way back when I first came in. (END VIDEO CLIP) MADDOW: President Obama last night on "The Daily Show", looking back to the beginning of his time in office, saying that some of that early work has begun to bear fruit now at the very end of his presidency. But not all of it, of course. Two days after his inauguration, President Obama signed an executive order to close the prison at Guantanamo Bay. Within one year, President Obama wanted it closed by 2010 he planned to have it closed by 2010. He ordered the attorney general and the defense secretary to get ready to prepare for moving prisoners out of Guantanamo into prison cells in the United States instead. He even found a maximum security prison for them in his home state of Illinois. But he could not get Congress to go along. And so, that initial plan was put on ice. And then the whole idea faded in to the background and stayed there for years. But then something started to happen a few months ago. Last October, right before the congressional elections, we started to get reports that the Obama White House would try to close Guantanamo without help from Congress. Then, this spring, the White House confirmed it. Josh Earnest said the president, quote, "has indicated a willingness to use as executive authority as he can to try to close the prison at Guantanamo." That was in May, just a couple of months ago. The big question since then has been, how would that happen? How would the president try to empty Guantanamo and close its doors if Congress wouldn`t go along. When would the president be ready to try it on his own, if that is how he would have to do it? I mean, that`s been the operating assumption, that if Guantanamo was ever going to close, it would have to happen without this Congress. Well, last night, "The New York Times" reported that the president may first try to work with Congress on this one more time. "The New York Times" says Defense Secretary Ash Carter and the president`s top counterterrorism advisor Lisa Monaco will deliver a plan for closing Guantanamo to Senator John McCain as early as next week. Senator McCain chairs the Armed Services Committee. He`s been a strong proponent of shutting down Guantanamo for years now, at least he was a proponent of it when he ran for president himself. The core of the plan is apparently an end to the ban on bringing the remaining 116 prisoners at Guantanamo to the United States. That`s been the main barrier to closing the prison because what do you do with the prisoners once the prison is gone? If that ban is lifted, the plan would transfer lower level detainees to the U.S. It would bring higher level detainees, deemed too dangerous for release to a break basically, to a military prison on U.S. soil. "The New York Times" reported that yesterday. Today, the White House confirms the administration is in the final stages of drafting a plan to close Guantanamo. And then they will apparently present that plan to Congress. They are not going about it on their own, at least not on the first try. What does this mean in terms of the likelihood of this actually getting done? And if it does get done, how will it get done? Joining us now is Neal Katyal. He`s a Georgetown University law professor. He`s a former acting solicitor general of the United States. He has argued 24 Supreme Court cases, including Hamdan versus Rumsfeld, which shut down President Bush`s military tribunals at Guantanamo because they were unconstitutional. Neal Katyal, thanks very much for joining us tonight. Nice to see you. NEAL KATYAL, GEORGETOWN UNIVERSITY: Thank you. It`s nice to see you too. MADDOW: We have this news today that President Obama is finalizing plans to close the prison at Guantanamo. It will be a plan that he presents to Congress as soon as next week. My sense is that Congress will never act to do that. But this must be the first step in a larger plan. KATYAL: Yes, Rachel. I mean, I guess I will try to be more linear than your last guest, which won`t be that hard. So, you know, look, he`s got to work with Congress at the first instance absolutely and talk to them. And it is important to point out that a lot of people across the aisle have said for years Guantanamo should be closed. I mean, Colin Powell said, if it were up to me, quote, "I would close Gitmo not tomorrow but this afternoon." John McCain said similar things. Even George W. Bush said Guantanamo is a terrorist recruiting tool around the world and a propaganda machine. So, you know, Gitmo has been a policy failure and expensive one at that. So, I think the president is doing the right thing right now. MADDOW: Putting it to Congress when you know that Congress -- I mean, you don`t know that Congress will do anything. We can guess that Congress will say no to this. Is that sort of a prerequisite toward the president taking some sort of executive action to do it on his own? I`m thinking of the precedent of immigration reform where the president tried to work it through Congress, tried to bring people together in Congress, both sides of the aisles, to work on comprehensive immigration reform. They decided not to do it and then he acted alone to the extent he could. Is that possibly the template here? KATYAL: Well, it could be. But I guess I`d say I think it`s important to approach this the way the president has, which is an optimistic spirit what about Congress might do here, because after all, Gitmo has been a total disaster and a failure. You know, there have been only eight trials at Guantanamo, seven of those convictions have been reversed already or about to be reversed. It`s not working. And so, yes, I think he`s got to work with Congress first. At the end of the day, I suspect he has some unilateral tools available to him to possibly close Guantanamo, but I`m sure that he would only use that in the last instance, and he`s doing the right thing by trying to work with Congress first. MADDOW: Neal Katyal, former acting solicitor general of the United States, thanks for your time tonight. It`s good to see you. Thank you. KATYAL: Thank you. MADDOW: All right. We`ll be right back. Stay with us. (COMMERCIAL BREAK) MADDOW: Programming note: Later this evening if you tune in to "Late Night with Seth Meyers" on NBC you will see the always funny Seth Meyers and somebody considerably less funny but who likes talk about politics with him when she is not hosting her m MSNBC show. Here`s a sneak preview in which there is a discussion between me and Seth Meyers about a man named Donald Trump. (BEGIN VIDEO CLIP) MADDOW: The one nice thing about it -- I mean, it`s astonishing. But the one nice thing is that when you cover big-time national politics, there`s almost never something totally unpredictable, you know? In this case, like that debate is going to happen. It`s like is he going to pull his pants down? SETH MEYERS: Right. MADDOW: Is he going to pull somebody else`s -- is he going to bite the head off of a bat? MEYERS: Yes. MADDOW: You know, like, hat else can happen? MEYERS: My prediction is he brings out a nicer, bigger podium. (LAUGHTER) MEYERS: Like little taller. (END VIDEO CLIP) MADDOW: "Late Night with Seth Meyers" tonight on NBC, I will be wearing this jacket but a different shirt. I will also be debuting some terrible new high-top sneakers that don`t go with the pants at all. That does it for us tonight. We`ll see you again tomorrow. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL." Good evening, Lawrence. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END