This is a rush transcript from "Journal Editorial Report," November 19, 2011. This copy may not be in its final form and may be updated.
PAUL GIGOT, HOST: This week on "The Journal Editorial Report," Newt Gingrich takes his turn at the top. Is the former House speaker just the latest flavor of the month, or can he actually win the Republican nomination?
Plus, the Supreme Court agrees to takes up Obamacare. Will the Justices vote to overturn? We'll handicap the odds.
And is the "Occupy Wall Street" all washed up, or maybe just getting started? We'll take a look at its future and the risk to Democratic lawmakers who get too close.
Welcome to "The Journal Editorial Report." I'm Paul Gigot.
Well, it was a good week for Republican presidential hopeful and former House speaker Newt Gingrich, with polls showing him surging in the race for the nomination as former front-runner Herman Cain falls. The latest Fox News poll shows Gingrich's support doubling in the last three weeks from 12 percent in late October to 23 percent. He's now tied for the lead with Mitt Romney, who has the support of 22 percent of GOP primary voters.
But as they take a closer look, will Newt Gingrich stay on top?
Let's ask Wall Street Journal editorial board members Dorothy Rabinowitz and Joe Rago and senior economics writer Steve Moore.
So Dorothy, what's behind this Gingrich surge?
DOROTHY RABINOWITZ, THE WALL STREET JOURNAL: Realization. It's really the perception of a mass of people at what they're looking at. And I think it was pretty pat of all of the commentators to say, well, this is the latest flavor of the month. I doubt that this is the latest flavor of the month.
GIGOT: Well, what -- what is his appeal, though, at this moment?
RABINOWITZ: His appeal is simply -- it's not simple. It's the genuine concentration on issues that has been absent, his capacity to engage people on issues. By issues we mean foreign, as well as domestic, the depth of his reporting on the meaning of issues.
And there is the X factor, the feeling that people have that they're listening to something different and substantial, some kind of very hearty meal, as opposed to a kind of mind-numbing repetition of, the government is broke, Washington is broke. How many times can you hear that and...
(LAUGHTER)
GIGOT: So he can think on his feet and is doing well in the debates.
RABINOWITZ: And expansively.
GIGOT: Steve, in the summer, as you know, the Gingrich campaign was really given up for dead. His staff had quit. He had all kinds of troubles, couldn't raise any money -- still not raising a lot of money, although that has improved. What's your reading on the revival of Gingrich?
STEPHEN MOORE, THE WALL STREET JOURNAL: Well, I think Dorothy has it right, that what -- the reason you're seeing this revival of Newt Gingrich is that he has looked presidential, Paul, in these debates. He can play the part, and that's something the Republicans really want.
You and I have known Newt Gingrich for over 20 years. We know that, you know, you walk around with Newt Gingrich, and he always has a live hand grenade in his pocket. So you never know when it's going explode. But you know, for the last...
GIGOT: You want that in a president, Steve? Do you want a president with a live hand grenade in his pocket?
(LAUGHTER)
MOORE: I'm not so sure, but you know, for the last couple months, it has not detonated. He's looked very good. And I -- one last thing, Paul. I've really gone through his economic program, and I think it's excellent. He sounds very much like a modern-day Jack Kemp, and it's a very appealing message.
GIGOT: You mean it's a pro-growth message with substantial tax cutting as part of it.
MOORE: That's right.
GIGOT: Is that what you like?
MOORE: Yes, the tax cuts. It also has personal accounts for Social Security. He wants -- one of the things I love, Paul, he wants to get rid of the Congressional Budget Office, which has been the bane of existence of supply-siders like me and you for 20 years. So he has very innovative ideas, and I think they're very attractive to conservative Republican voters.
GIGOT: All right, Joe, do you share this enthusiasm?
JOSEPH RAGO, THE WALL STREET JOURNAL: No, I don't think so. I think Gingrich has his schtick. You know, I don't...
MOORE: Schtick?
RAGO: Real fundamental change, Paul, dramatic change. This is the most important election since 1932, if not 1860. But you know, he combines this rhetoric, this very expansive, inflammatory rhetoric a lot of times with very timid policy proposals. So he gives the impression of doing too much while achieving nothing in practice.
GIGOT: Seems more radical than actually he really is. Give us an example of that.
RAGO: A real good one is Medicare reform. You know, just a few months ago, his grenade detonated when he went after Paul Ryan's Medicare reform for premium support and said, you know, It's too radical, no one's going to accept it.
GIGOT: Called it Republican social engineering.
RAGO: Exactly. And then if you look at his own Medicare proposal, it's actually more timid than Newt...
GIGOT: Romney.
RAGO: ... Mitt Romney. So...
(CROSSTALK)
GIGOT: ... because it would preserve the traditional Medicare program, instead of requiring everyone to get a fixed payment from the government...
MOORE: But you know...
GIGOT: ... which is what Ryan's plan would do. Yes, Steve, go ahead.
MOORE: You know, one of the things that I find fascinating about what Newt has done, I think, very shrewdly, is if you listen to his message now on the campaign trail and in the debates, it's, Look, I've done these things, that -- that I actually am the one in the -- when I was speaker of the House that did Welfare reform, that did the balanced budget, that passed the capital gains tax cut.
One of his lines he makes all the time in this era of these enormous debts is he says when he came in as speaker, we had a 10-year forecast of a $2 trillion deficit. Not -- when he left, we had a $2 trillion 10-year surplus. That's a pretty attractive message, as well, and I think it's interesting he's running on that message.
GIGOT: All right, but here's the thing. He also -- and that -- Steve is right about that record, but he also was the most unpopular politician in America in the late '90s, and his own colleagues in the House ousted him as speaker.
MOORE: Was.
RAGO: That's true.
RABINOWITZ: How about the famous phrase uttered by a current resident of the White House, "the fierce urgency of now"? This is the present.
GIGOT: I never thought I'd hear you quoting Barack Obama favorably.
(LAUGHTER)
RABINOWITZ: It was actually his minister.
(LAUGHTER)
GIGOT: Oh, OK.
RABINOWITZ: His urgency of now is, people listening to him, if they were aware of all these violations of the sacred covenant of conservativism, so aware that they would be voting for Michele Bachmann. They would be voting for everyone else. But they're listening to what they understand is leadership and a capacity to be in this battle now (ph).
GIGOT: All right, Dorothy, what about -- what about this hand grenade point, that he has a history of saying things that get him into trouble. You have to admit that. Is that a potential danger here?
RABINOWITZ: We don't know. And that's the answer, we don't know what he will do. But people do move forward and change. You know, Richard Nixon did. Thank you for the reminder.
(LAUGHTER)
And others have done so. And the capacity to grow is there. And I think I see it now. I think I see it in his understanding of the way to deal with people. But I'm looking at the response to him, the response of these people. They recognize something special.
GIGOT: All right. We're going to be watching all of this.
When we come back, the Supreme Court agrees to hear a challenge to Obama are. So how are the Justices like to rule, and who could be the deciding vote? Our panel weighs in next.
(COMMERCIAL BREAK)
GIGOT: The Supreme Court agreed this week to decide the fate of President Obama's health care overhaul, setting up a landmark showdown over the constitutional limits of federal power. The Justices will hear an historic five-and-a-half hours of oral arguments in late February or early March, with a decision expected by the end of June, just in time for the final stretch of the 2012 presidential race.
We're back with Joe Rago, and also joining the panel, Opinionjournal.com James Taranto and senior editorial page writer Collin Levy.
So when David Rifkin (ph), the lawyer who first wrote about this potential challenge constitutionally to Obamacare on our pages, the liberals were all laughing. I don't think they're laughing now. Tell us about what the essence of this challenge from the 26 states is to the law.
COLLIN LEVY, THE WALL STREET JOURNAL: Sure. Basically, the states are challenging the federal government's application of the commerce clause, which is their ability to regulate commerce among the several states, right? And so this is a situation that's very complicated and complex because you basically have a case of economic non-activity, so whether...
GIGOT: They are saying, You must...
LEVY: Right. You must -- you must...
GIGOT: ... buy health insurance.
LEVY: You must -- you must buy health care, and then we're going to regulate it, right?
GIGOT: Because the -- right.
LEVY: So -- so this is -- I mean, this is kind of like saying, you know, You have to install traffic lights so that we can install streets. I mean, it's -- you know, it's putting the cart before the horse.
GIGOT: OK.
LEVY: So...
GIGOT: And the Obama administration says, No, no, no, it's not really a requirement like that. It's just a tax because you pay a penalty if you don't buy health insurance. And taxes are constitutional. We all know that, unfortunately.
LEVY: Unfortunately. You have think about this, too. I mean, if you say that the government can force you to buy health insurance, why can't they force you to buy pancakes or mascara, or any number of things? Now, the federal government says, well, the health insurance market is unique. This is something that's unlike anything else because it's a massive -- massive market, and the choice not to buy health insurance also represents an impact on -- you know, on the national economy.
GIGOT: There's also a challenge -- sorry, Collin. There's also a challenge, Joe, to the Medicaid expansions under this bill.
RAGO: Right. Well, this is interesting because none of the lower courts have affirmed the argument, which is that by expanding Medicaid, you're commandeering state resources and forcing them to participate and...
GIGOT: And Medicaid is a program that's supposed -- or intended to be for the poor, but that this -- he Obama care would expand to a new middle class entitlement.
RAGO: Right, definitely taking up the eligibility levels. And you know, the interesting thing about them taking the Medicaid argument is that it looks like they want to give a larger ruling on the limits of federal power, or to say that those limits don't exist anymore. So it's a really important case about whether or not the government of limited enumerated powers that the Framers envisioned still exists.
GIGOT: So if the mandate goes down, James, does the whole law go away?
JAMES TARANTO, THE WALL STREET JOURNAL: Well, that's a third question that the Court is considering, what's called severability. Is the law so dependent on this mandate provision that the whole law has to go down? Now, what's interesting is both the Obama administration and the states that are the plaintiffs in this case have said that it is not severable -- that is, if the mandate is struck down, the whole law has to go down.
The Supreme Court is under no obligation to accept this legal argument simply because both sides make it, but it's interesting that both sides are making it for their own strategic reasons.
GIGOT: It's really interesting. Now, the lower courts have divided on this. Even some conservative judges at the lower courts have split on whether or not this is constitutional. What do you make of that divide among conservatives, and how will it influence the Court?
TARANTO: What I make of that is very simple, all right? This is an unprecedented case. There has never been a case before in which Congress has tried to force people to purchase something, citing its commerce clause power.
So you have to understand there's a difference between the job of an appellate judge and the job of a Supreme Court Justice. The appellate judge's job is to follow Supreme Court precedent. Well, Supreme Court precedent could lead in any number of directions. So their job is one of sort of guesswork. They're trying to figure out where the existing precedent leads. The Supreme Court actually decides where it leads, and that's what we'll learn next year.
LEVY: It's also going to be interesting, too, though, to see how some of the lower court opinions from the conservative justices, in particular on the D.C. circuit, where you had opinions from conservative judges, Silberman and also, you know, a dissent, but on different grounds, from Judge Kavanaugh -- how those conservative opinions could influence Justice Kennedy. You know, Kavanaugh's decision came on anti-injunction grounds, which we haven't discussed, but this is basically the idea that you can't actually challenge Obamacare until the tax of Obamacare goes into effect in 2015.
GIGOT: So put it off until it actually hits.
LEVY: Right, it would push it off. It sort of kicks the can down the road. So this is something where if we get a situation on the Supreme Court where the conservative Justices aren't all united, or they're not sure exactly where things are going to go, Kennedy could, in theory, say, Well, hey, look, we could take this Kavanaugh route and you know...
GIGOT: And punt?
LEVY: Right.
GIGOT: How do you handicap the Justices, Joe?
RAGO: I think, you know, there's definitely two to overturn the mandate. I think there's definitely four that will vote to uphold it.
GIGOT: Those would be the four liberals.
RAGO: The four liberals.
GIGOT: And the two that would overturn would be Justice Thomas and who's the other, Alito?
RAGO: I think Alito.
(CROSSTALK)
RAGO: But I think Roberts and Scalia are toss-ups here.
GIGOT: James?
TARANTO: I'm going to go out on a limb and say 5-4 to overturn the mandate, in part because there's no political support for this law outside the most hard-core partisan Democrats. And so therefore, unlike with -- after the New Deal, where all of these precedents were set up, the Justices are not under political pressure to approve what Congress has done.
GIGOT: Are you saying the Supreme Court listens to polls?
TARANTO: I'm saying that when they're in a position that they have to make new law, this is going to come into account.
GIGOT: All right...
TARANTO: It certainly came into account in the 1940s.
GIGOT: You heard it here, Taranto's on record, 5-4 to overturn. I won't put you both on the spot with that, but we'll call James in to back that up.
OK, when we come back, as big city mayors shut down the Occupy encampments, we'll examine the future of the movement and the political fallout for Democrats.
(COMMERCIAL BREAK)
GIGOT: Two months after the "Occupy Wall Street" movement began, New York City police moved in this week to clear out the protesters' encampment in Lower Manhattan's Zuccotti Park. Mayor Michael Bloomberg ordered the eviction, following in the footsteps of the mayors of Oakland, Portland, Denver and Salt Lake City, all of whom have moved in recent days to crack down on the increasingly disruptive protests.
In New York, demonstrators responded with marches throughout the city, vowing to continue the fight. But has the "Occupy" movement run its course?
All right, Collin, so have the protesters succeeded in their really attempt to inspired the masses to revolt?
(LAUGHTER)
LEVY: Revolt is -- "revolting" might be the appropriate word! I think that, you know, where they're really failing now is they're failing to make the transition from protest to politics. And I think that what you're seeing now is they're increasingly becoming associated just with disruption and some of this unpleasantness.
And I think it's some of the reason that you're seeing an increasing distancing of Democrats from this movement, very much unlike the way the Tea Party did find some common ground with some Republicans. I think that's not happening here. And that was very clear this week.
GIGOT: James, is it working?
TARANTO: Well, they're certainly revolting, but...
(LAUGHTER)
TARANTO: I actually see one similarity between these -- what I call "Obama-villes'' and the Tea Party, and that --
GIGOT: You call them "Obama-villes'' why?
TARANTO: Because -- as an homage to the "Hoover-villes" the protest encampments that sprung up during Herbert Hoover's administration.
GIGOT: You think this is an homage to Obama?
TARANTO: No, no, no. I think this is in some ways a protest against Obama or against the kind of leadership he's given. This is my point about the similarity with the Tea Party. The Tea Party was in part a revolt against the Republican establishment. This, I think, shows a bifurcation in Democratic base.
I suspect a lot of these young people who are out -- who have been out there at these encampments were supporters of Obama in 2008, who were attracted by his kind of vague grandiose rhetoric about making fundamental change in the county. They've come up against reality, or the president has come up against reality, and so now they're just looking for another outlet for that sort of, you know, vague youthful -- they would call idealism. I would call it nihilism.
GIGOT: Dorothy...
RABINOWITZ: (INAUDIBLE) cheering (ph) start (ph), James, on this.
(LAUGHTER)
RABINOWITZ: This is essentially what happened here now. The people of New York City are practically incensed at every turn these people have taken. The major -- the major fuse (ph) for all of this -- I know that we don't like to speak ill of the media -- has been an absolutely out-of- control media.
I listened to a radio report at WABC the day that they were taken out of Zuccotti Park. And he could not stop (INAUDIBLE) it's not over yet. It's not over yet. This was cheerleading and it is universal cheerleading. They take the most commonplace piece of idiocy reported from the mouths of these (INAUDIBLE) and treat it as though they were the jewels of insight...
(LAUGHTER)
RABINOWITZ: ... Churchillian in their depth, stuff like, Man, we got to level things.
(LAUGHTER)
TARANTO: And speaking of the media, the newspaper-ville, which represents a lot of reporters, a trade union, has endorsed these protests!
RABINOWITZ: Yes.
TARANTO: So you know, there's your media bias.
GIGOT: So I assume you're a supporter of the mayors who have ousted these people, Dorothy?
RABINOWITZ: (INAUDIBLE) and what's so wonderful is that Mayor Quan, you know, in Oakland -- these are all immensely liberal people with long Democratic liberal records. They all are showing the same impulse, which is, we cannot handle this chaos, which it was from the first.
This is an eruption of post-adolescent, you know, traversity (ph) which found its voice in unions and in the media. Without this coverage night and day -- you still can't turn the radio on -- telling you -- the only thing I don't know is what they had breakfast for this morning, and someone will tell us.
GIGOT: Well, but haven't they succeeded in reframing the national debate? I mean, Democrats have -- basically, have tried to divert attention from their economic policies and the results, which haven't been great, to basically say, This is the fault of the rich and the bankers and the rich one percent, and this movement flows right into that narrative.
And they have now -- certainly, they had a big influence on the Democratic Party, which doesn't want to get anywhere close to cutting tax rates for the richest part -- or cutting -- not just for the rich, but cutting tax rates at the top level because it'll somehow be perceived as -- even as part of tax reform, as some kind of help for the 1 percent.
TARANTO: Well, it's certainly been a distraction from the chronic complaints about President Obama's leadership, but I'm not sure it's a distraction that's helpful electorally because what are we distracted by? We're distracted by urban chaos, violent demonstrations, you know, left- wing crazies...
GIGOT: But have they changed the national debate?
TARANTO: Yes, but in a way -- I mean, so left-wing types in the media are writing more articles about income inequality. Big deal.
(LAUGHTER)
TARANTO: That's what they do anyway.
(LAUGHTER)
LEVY: (INAUDIBLE) all about the economy, which loops you right back to Obama again.
RABINOWITZ: The only 95 percent that there exists now is the nature of the idiocy that's pronounced every day.
GIGOT: And that's the last word, Dorothy.
We have to take one more break. When we come back, "Hits and Misses" of the week.
(COMMERCIAL BREAK)
GIGOT: Time now for "Hits and Misses" of the week. Steve, first to you.
MOORE: Paul, what if the NBA had a strike and nobody cared? It's been two months now without professional basketball. Have you missed it? Not many American fans have.
You know, I'm going to put out a warning here to the owners and to the players. The average player is making $5 million a year. Let's face it, Kobe, Lebron, Carmelo, you're getting tens of millions of dollars a year to play basketball? My prediction, Paul, is if they don't settle this dispute very soon, the people who are going to go on strike are we, the fans.
GIGOT: OK, Steve. James?
TARANTO: Paul, Diane Sawyer at ABC News got a terrific scoop this week, the first interview with Gabrielle Giffords, the congresswoman from Arizona who was gravely wounded by a would-be assassin's bullet in January.
The interview was terrific, but Diane Sawyer gets a miss for her cheap shot introduction, in which she deceptively suggested that Sarah Palin and the Tea Party were to blame for the shooting. Great story. The intro was shameful and ugly.
GIGOT: OK. Collin?
LEVY: Paul, Hollywood tends to be pretty cynical about the military, so it was really a pleasant surprise this week to see that Justin Timberlake had accepted the invitation to the Marine Corps ball of Marine Corporal Kelly De Santis.
He went on to blog about it afterward, talked about what an honor it was and how inspired he was by seeing everything and encouraged other young Americans to also show their respect for the military and maybe even buy them a beer. So there's a hit to that.
GIGOT: Terrific. You miss the NBA season, Collin?
LEVY: Not so much.
GIGOT: No, not so much? OK, I...
MOORE: What's that?
GIGOT: I'm with you, actually.
That's it for this week's edition of "The Journal Editorial Report." Thanks to my panel and to all of you for watching. I'm Paul Gigot. And we hope to see you right here next week.
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