>> this week on the journal "editorial report," newt gingrich takes his turn at the top. is he actually the latest flavor of the month or can he win the republican nomination? plus, the supreme court agrees to takes up obamacare. we'll handicap the odds. and is the occupy wall street washed up? we'll take a look at its future and the risk to democratic lawmakers who get too close. welcome to "the journal editorial report." it was a good week for

presidential hopeful and former house speaker newt gingrich with polls showing him surge nothing the race for the nomination as former frontrunner herman cain falls. the latest fox news poll shows gingrich's support doubling in the last three weeks from 12% in late october to 23%, now tied for the lead with mitt romney who has a support of 22% of gop primary voters, but as they take a closer look will newt gingrich day on top? let's ask the "wall street journal" editorial board members. dorothy, what's behind this gingrich surge? >> it's the perception of a mass of people, what they're looking at. i think it was pretty pat of all of the commentators to say, well, this is the latest flavor of the month. i doubt this is the latest flavor of the month. >> what is his appeal, though, at this moment? >> his appeal is simply -- it's not simple.

it's the genuine concentration on issues, his capacity to engage people on issues. by issues we mean foreign as well as check in. the debt of his reportings on the meaning of issue. there's 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? >> so he can think on his feet? >> and extensively. >> steve, in the summer, as you know, the gingrich campaign was 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? >> well, i think dorothy has it right, that the reason you're

seeing this revival of newt gingrich he's looked presidential in these debates. he can play the part. that's something the republicans really want. you and i have known for newt gingrich for over 20 years. you walk around with newt gingrich, and he always has a live hand grenade in his pocket. you never know when it's going explode. >> you want that in a president, steve? do you want a president with a live hand grenade in his pocket? >> i'm not so for sure, but for the last couple months it's not det take it. he's looked good. i've gone through his economic program, and i think it's excellent. he sounds very much like a modern-day jack kemp. it's an appealing message. >> a pro-growth message with substantial tax cutting as part of it. is that what you like? >> tax cuts, personal accounts for social security. one of the things i love, he wants to get rid of the congressional budget office, the bane of existence. he has innovative ideas, very

attractive to conservative republican voters. >> joe, do you share this enthusiasm? >> no, i don't think so. i think gingrich has his schtick. >> schtick? >> 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 timid policy proposals. he gives the impression of doing too much while achieving -- >> give us an example. >> a real good one is medicare reform. you know, just a few months ago his grenade detonated when he went off paul ryan's medicare reform for premium support and said, you know, it's too radical, no one's going to accept it. >> called it republican social engineering. >> exactly. then if you look at his own medicare proposal, it's actually more timid than mitt romney's.

>> because it would preserve the traditional medicare program instead of requiring everyone to get a fixed payment from the government, which is what ryan's plan would do. yeah, steve, go ahead. >> you know, one of the things that i find fascinating about what newt gingrich has done, very shrewdly, if you listen to his message on the campaign trail, the debates, it's, look, i've done these things, when i was speaker of the house, i 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 enormous debts, he says when he came as speaker we had a 10-year forecast of a $2 trillion deficit. when he left, we had a $2 trillion 10-year surplus. that's an attractive message as well. i think it's interesting he's running on that message. >> here's the thing, he also -- 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. >> that's true. >> how about the famous phrase uttered by a current resident of the white house, the fierce urgency of now? this is the president. >> i never thought i'd hear you quoting barack obama favorably. >> it was actually his minister. >> oh, okay. >> his urgency of now is people listening to him, if they were aware of all these violations of the sacred covenant of conservatism, they would be voting for michele bachmann, everybody else, but they understand leadership and a capacity to be in -- >> all right, dorothy, what about this hand grenade point? he has a history of saying things that get him into trouble, you have to admit that. is that a potential danger here? >> we don't know. and that's the answer. we don't know what he will do. people do move forward and change. you know, richard nixon did. thank you for the reminder.

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. >> all right. we'll be watching all of this. when we come back, the supreme court agrees to hear a challenge to obamacare. how are the justices like to rule and who could be the deciding vote? our panel weighs in next. to be more environmentally aware, we are now printing on the back sides of used paper and we switched to fedex cause a lot of their packaging contains recycled materials. tell them what else fedex does. well we're now using more electric trucks

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>> the supreme court agreed this week to decide the fate of president obama's healthcare overhaul, setting up a landmark showdown over the constitutional limits of federal power. the justices will hear an historic 5 1/2 hours of oral arguments in late february or early march with the decision expected by the end of june. that's just in time for the final stretch of the 2012 presidential race. we're back with joe rago, and

james toronto and colin levy. when david riskin, the lawyer who first wrote about this potential challenge constitutionally to obamacare, and the liberals were laughing. i don't think they're laughing now. tell us about the essence of the challenge to the 26 states to the law. >> the states are challenging the federal government's application of the commerce clause, their ability to regulate commerce among several states, right? this is a situation that's very complicated and complex, because you basically have a case of economic nonactivity. >> they're saying you must buy health insurance? >> you must buy healthcare and we're going to regulate it. >> right. >> this is kind of like saying 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. >> okay. and the obama administration says, 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. >> unfortunately. you have tie about this too, if just the government can force you to pay health insurance, why can't they force you to buy pancakes or mascara, any number of things. they say this is unique, unlike anything else, because it's a massive market, and choice not to buy health insurance also represents an impact on the national economy. >> there's also a challenge, joe, to the medicaid expansions under this bill. >> right. well, this is interesting, because none of the lower courts have affirmed the argument, which is that by expanding medicaid you're commandeering the state resources and forcing them to participate. >> medicaid is a program that's intended to be for the poor, but

the obamacare would expand to a new middle class entitlement. >> taking up the eligibility levels. 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 andy norm rated powers that the framers envisioned still exists. >> so if the mandate goes down, james, does the whole law go away? >> is the law so fixated on the mandate provision? 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 make it for their own strategic

reasons. >> it's really interesting. 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? >> very simple. all right? this is an unprecedented case. there's never been a case before in which congress has tried to force people to purchase something citing its commerce clause power. 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 has to follow supreme court precedent, leading in any number of directions. their job is one of guesswork, trying to figure out where the existing precedent leads. the supreme court actually decides writ leads, and that's what we'll learn next year. >> it's going to be interesting, too, to see how the lower court opinions from the conservative justices in particular on the d.c. circuit, where you had opinions from conservative justices silverman and also, you know, a dissent, but on

different grounds from judge cavanaugh, how those conservative opinions could influence justice kennedy, you know, cavanaugh'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. >> so put it off until it actually -- >> right, it would push it off. it kicks the can down the road. this is something where if we get a situation on the supreme court where the conservative justices aren't all united, or not sure exactly where things are going to go, kennedy in theory could say, well, hey, look, we could take this cavanaugh route and -- >> and punt? >> right. >> how do you handicap the justices, joe? >> i think, you know, there's definitely two to overturn the mandate. i think there's definitely four that will vote to uphold it. >> the four liberals. >> the four liberals. >> and two to overturn would be justice thomas and alito?

>> i think alito, but i think roberts and scalia are tossups here. >> james? >> 5-4 to overturn the mandate, in part because there's no political support for this law outside the most hard-core partisan democrats. so therefore unlike with -- after the new deal, where all these precedents were it set up, the justices are not under pressure to -- >> are you saying the supreme court listens to polls? >> when they're in a position that they have to make new law, this will have to come in to account. it came into account in the '40s. >> we'll call james in to back that up. okay. when we come back, as big city mayor shut down the occupy encampments we'll examine the future of the movement and the political fallout for democrats. just one phillips' colon health probiotic cap a day helps defends against occasional constipation, diarrhea,

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>> two months after the occupy wall street movement began, no, police moved in this week to clear out the protesters' encampment in lower manhattan. 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 protest. 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, have the protesters succeeded in inspiring the masses to revolt? >> hmm. 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. i think that what you're seeing now is they're increasingly becoming associated just with disruption and some of this unpleasantness. i think it's some of the reason that you're seeing an increasing distancing of democrats from this movement, very much unlike the wait tea party did find some common ground with some republicans. i think that's not happening here. and that was very clear this week. >> james, is it working? >> well, they're certainly revolting. i actually see one similarity between what i call obama bills and the tea party. >> call them obama bills why? >> as an homage to the hoover bills, the protest encampments that sprung up -- >> this is in homage to obama? >> no, to the leadership he's given. the tea party was in part a revolt against the republican stabment.

this shows a wife furcation in the -- bifurcation. they've come up against reality, or the president has come up against reality, and so they're now looking for another outlet for that sort of vague youthful -- they would call idealism. i would call it anilism. >> people of new york city are practically incensed at every turn these people have taken. the major fuel for all of this has been an absolutely out-of-control media. i was listening to a radio part at wabc the day they were taken out of zuccotti park. this is cheerleaders, universal

cheerleading. they take the most commonplace editorial reportsy reported from their mouths. stuff like, man, we got to level things. >> and speaking of the media, the newspaper bill, which represents a lot of reporters, a trade union, has endorsed these protests. >> yes. >> so there's your media bias. >> i assume you're a supporter of the mayors who have ousted these people, dorothy? >> these are immensely people with long democratic liberal records, they all are showing the same impulse, which we cannot handle this chaos, which it was from the first. this is an eruption of postadolescent, you know, traversity which found its voice in the media and 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. >> haven't they succeeded in reframing the national debate? democrats have tried to divert attention from their economic policies, and the results haven't been great, to say the fault is the rich bankers and the 1%, and certainly they had a big influence on the democratic party which doesn't want to get close to cutting tax rates for the -- or cutting, not just for the rich, but cutting tax rates at the top level, because it will somehow be perceived even as part of tax reform as some kind of help for the 1%. >> 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 electally. >> this they changed the

national debate? >> yes, in a way. left wings are writing about it. >> it's a nature of the editorial reportsy pronounced every day. >> when we come back, hits and misses of the week. ♪ in her eyes... the world is never too big. in his...the weather should never keep you inside. ♪ because they see no limits, there's eukanuba nutrition designed to help their body go as far as their mind wants to. eukanuba. extraordinary nutrition for extraordinary beings. see the difference in 28 days or your money back.

>> time now for hits and misses of the week. steve, first to you. >> 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 to play basketball. my prediction, if they don't settle this dispute very soon, the people are going to go on

strike, we, the fans. >> steve? >> diane sawyer at abc news got a terrific scoop this week, the first interview with gabrielle giffords, the congresswoman from arizona gravely wounded by a would-be assassin's bullet in january. the interview was terrific, but diane gets a miss for her cheap shot introduction in which they suggested that sarah palin and the tea party was to blame for the shooting. great story, but the intro was shameful and ugly. >> collin? >> to see that justin timberlake went on to accept an invitation to the marine ball, went on to blog about it, and encouraged other young americans to show their respect for the military and maybe even buy them a beer. there's a hit. >> terrific. do you miss the nba season,