Will Justice Kagan Recuse Herself from Obamacare Suit?

This is a rush transcript from "The Five," November 16, 2011. This copy may not be in its final form and may be updated.

KIMBERLY GUILFOYLE, CO-HOST: Should Supreme Court Justice Elena Kagan recuse herself from the Obamacare case? Critics think she should, because she worked for the Obama administration and actually helped craft their legal defense of the legislation. We're going to talk about that.

Dana, you got an opinion about this.

DANA PERINO, CO-HOST: Well, I think it's a clear-cut case. When you e-mails from solicitor general, he was solicitor general of the U.S. Department of Justice. And she sent an e-mail that says, I hear they have the votes. It's amazing!

ERIC BOLLING, CO-HOST: And two exclamation points?

PERINO: Well, I think there's three. The third one means a lot.

There is a precedent for this. Other solicitor generals have become Supreme Court justices and they recused themselves. It's hard.

I mean, if you are the solicitor general, you touch a lot of different cases. This one was the signature of the -- the signature policy. Bob --

BOB BECKEL, CO-HOST: I'm sorry. I'm not --


PERINO: The signature case for the administration. The question is now the justices have said at least there's a question of constitutionality. And that's why we're going to hear it. I think she has responsibility to recuse.

GUILFOYLE: Do the right thing.

Well, during a confirmation process last year, Bob, the Republican senators specifically asked her whether she would recuse herself and she replied that said she had no role in crafting the government lawsuit. OK? Now there is e-mail, that contradict that, Bob.

BECKEL: Well, first, I was not sighing because of what you were saying. I was sighing because it's tough to not be four against one here. Do you have to write in a lead that says Bob supports Kagan -- I do not. Four or five liberal friends of mine watching this show, let's make it clear that was a joke by the producers. Very funny.

Now, let's --

GUILFOYLE: Your brother to the left of that.

BECKEL: If that's your -- excuse me for a second. If that's your best case, she did not draft this legislation. She did not defend the legislation. She has every right to be on the court. But you know who doesn't? Wait a second. Wait a second. Clarence Thomas, because his income comes from an anti-Obamacare -- his wife. Yes. Don't they file joint tax returns?

BOLLING: I don't know.

BECKEL: Yes, hey do. This guy gets money from people --

BOLLING: How about this --

BECKEL: He ought to be out.


BOLLING: Hold on, both of them recuse themselves. Recuse both of them.

GUILFOYLE: Knock them both out.

BECKEL: She doesn't have --


BOLLING: Wait a minute. You want him recused.

PERINO: Please.

GUILFOYLE: The miracle ear I got last year for Christmas is blown out.

PERINO: There are two justices, Stevens and Breyer, who have said that Thomas would not be swayed by anything that his wife did or advocated for. Those are not conservative justices, those are liberal justices.

GUILFOYLE: Good character reference.

BRIAN KILMEADE, CO-HOST: I would say this, it's kind of interesting. If you look at the e-mails, you can't really get the tone of the emails. You tell, play at home, and tell me if Elena Kagan was happy the healthcare law was passed.

BECKEL: Of course she was happy.

KILMEADE: Quote, "I hear they have the vote," explanation point, exclamation point, exclamation point. "Larry, simply amazing."

She has a horse in this race.

BECKEL: What do you think Clarence Thomas said to his old lady when he got home? My God, they got the votes! Can you believe that?

KILMEADE: How about this? Mary Matalin and James Carville, I still disagree with you, pass the salt. That's the same thing. People can live with each other -- the year is 1993, the last time my wife agreed with me.

BECKEL: I'm surprised it's that sort period of time. Who else didn't have an opinion on this thing? Everybody had an opinion.


GUILFOYLE: OK. This is significant. It might have been lost in the traumatic reenactment here that B.K. delivered.

KILMEADE: It's well above average.

GUILFOYLE: Here is the deal, you know who "Larry" is?


GUILFOYLE: It ain't Larry the cable guy. You know who it is? Laurence Tribe -- yes, the Supreme Court litigator, who is a big supporter and advocate. I have listened to him speak on this issue, that it should be held constitutional. How can you say that there is no --

BOLLING: Amazing, exclamation point, exclamation point.

BECKEL: What is the big deal? She is in favor of it passing. She's part of the administration. Of course she will say that.

It had nothing to do with drafting the legislation. And unlike Thomas, she didn't profit from it.

BOLLING: Exactly, therein lies the problem.


BOLLING: She is part of the administration.

BECKEL: And Thomas profited from it.


KILMEADE: She's already recused herself on some petitions already, some other things.

BECKEL: Which she was directly involved with.

KILMEADE: Right. But this to me, Bob, is clearly, she has a horse in the race. It's up to her.

And if I was her, I would say, I want my record clean. There are e- mails that show that she is cheering for it.

BECKEL: Is this the best you can do? Is this your case? Is that your case? That email is your case?

KILMEADE: This is the beginning of the case. We know how she feels. She couldn't be on the jury but she could behind the bench.

GUILFOYLE: This is a well-settled law.

BECKEL: Do you think --

GUILFOYLE: Bob, this is a quote, and you can apply it if you want to Clarence Thomas. But any proceeding in which impartiality might be reasonably be questioned, you would have to rescue yourself. That's the law. So, isn't there is a good faith basis to question whether or not she might not be impartial? She was solicitor general at the time it was drafted in her office.

BECKEL: Do you think that Antonin Scalia, when he went home at that night, was happy that the law passed?

GUILFOYLE: I wasn't.

BOLLING: Did he send any e-mails? Was he working in the White House?

BECKEL: No, he was the Supreme Court justice. He was probably against it. More than likely, he was against the bill, he can vote against it, because he's going to vote politics like he did in Gore versus Bush.

GUILFOYLE: OK. You like --


PERINO: She'll have a long career. She's appointed for a lifetime appointment. There will be a lot of cases that come her way that she can weigh in on. I think t one --

BECKEL: I can't believe you'd say that of all people, on the basis of that?


BECKEL: Oh, my God.

GUILFOYLE: Let's go around the table. Brian, do you think --

BECKEL: And, by the way, I'm glad you pulled your the tie up.

GUILFOYLE: You think she should recuse herself, right?

BOLLING: I'm willing to say both, take Clarence Thomas and her


GUILFOYLE: Dana, what do you think?

PERINO: I don't think that he has to, but I think --

GUILFOYLE: Kagan out. Thomas in.

KILMEADE: I think for Kagan's career, and I'm advocate for her career, for her own good and for her resume, she should not take part in this.

PERINO: For legitimacy.

GUILFOYLE: And Bob thinks Kagan in, Thomas out?

BECKEL: That's answer for me. Yes, sure. Yes.

GUILFOYLE: I'm asking.

BECKEL: Are you kidding me? Of course.

GUILFOYLE: I just wanted to be clear.

BOLLING: Can I point something out? Bob said 4-1, that last segment, the "E" block.

PERINO: One to four.

BOLLING: It was four -- I know how you feel, brother.

GUILFOYLE: Oh, my gosh.

BECKEL: Now, I'm going to feel really sorry for you. I'll have a hard time sleeping tonight. Are you kidding me?

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