i think the kagan criteria are correct, no evidence she had substantial role. what thomas, the idea that a spouse would make you have to recuse yourself, spouse activities is insulting. if the sexes were reversed and he were a woman because of a husband's activity, it would said a justice had to recuse him or herself it would be called sexism. these are dismissible objections. >> shannon: we are talking about the work that jenny thomas, justice thomas' wife has done with groups that oppose the healthcare law. moving to the next topic, newt gingrich is having a good week. talk about the polling numbers throughout and then we will break them down. the last fox news poll, looking at the g.o.p. presidential nominee preference, gingrich is one point ahead of romney at 23%. then look at iowa, the first key caucus state. a new poll out from rasmussen reports really, we don't know if it's an anomaly. we'll let you hash it out. gingrich at 32%. romney at 19%. that stands in contrast to what we had from the beginning of the week which was a four-way tie between cain, pau

>> eric: i say both recuse themselves. >> dana: kagan out.>> brian: kagan career, i'm advocate for her career and for her good and resume not take part in it. >> dana: for legitimacy. >> kimberly: bob, kagan in and thomas out? >> bob: answer for me. of course. >> eric: bob says 4-1, the last segment, "a" block. >> dana: 1-4. >> eric: i know how you feel, brother. >> kimberly: my gosh. >> bob: now i'll feel really sorry for you. hard time sleeping tonight. are you kidding me? >> kimberly: you have seen gaffes of rick perry and herman cain, and the hits keep coming. since we're fair and balanced we'll show you one of the big blunders in washington. v.p. j.b.! you don't want to miss it! ♪ ♪ >> brian: welcome back to "the five." don't worry, greg will be back tomorrow. on monday night, americans saw emotional story of survival when gabrielle giffords spoke publicly for the first time since she was shot in the head by the crazy gunman earlier this year. at the time, we were reminded to be mindful of the rhetoric and language we used. president oba

>> eric: i say both recuse themselves. >> dana: kagan out.>> brian: kagan career, i'm advocate for her career and for her good and resume not take part in it. >> dana: for legitimacy. >> kimberly: bob, kagan in and thomas out? >> bob: answer for me. of course. >> eric: bob says 4-1, the last segment, "a" block. >> dana: 1-4. >> eric: i know how you feel, brother. >> kimberly: my gosh. >> bob: now i'll feel really sorry for you. hard time sleeping tonight. are you kidding me? >> kimberly: you have seen gaffes of rick perry and herman cain, and the hits keep coming. since we're fair and balanced we'll show you one of the big blunders in washington. v.p. j.b.! you don't want to miss it! look, every day we're using more and more energy. the world needs more energy. where's it going to come from? ♪ that's why right here, in australia, chevron is building one of the biggest natural gas projectsn the world. enough power for a city the size of singapore for 50 years. what's it going to do to thplanet? natural gas is the cleanest conventional fuel the

leckar: as i -- thank you, justice kagan. as i said moments ago, what makes it meaningful, what makes it a meaningful deprivation of a possessory interest, is once the gps gets activated. we look at reality. we follow what silverman v -- justice scalia: so it doesn't make it a seizure. that doesn't make it a seizure. it makes it a search. mr. leckar: your honor --justice scalia: i mean, you can say that there is a trespass for the purpose of obtaining information, which makes it a search. but i don't see how it's a seizure. a seizure, you have to bring something within your control. you have to stop the person or stop the vehicle. what has been seized when you -- when you slap a tracking device on a car? mr. leckar: what has been seized is antoine's -- data. data is seized that is created by the gps. antoine jones has the right, your honor, to control the use of his vehicle. and what the government did was surreptitiously deprive him of the use of that justice scalia: do you have any case involving seizure of -- of data float

now emails octobered by je judicial watch say that kagan privately expressed her opinion after passagee law and may have helped organize a response anticipating later court challenges. in one email sent to scholar lawrence tribe after the healthcare law was passed kagan wrote, i hear they have the votes, larry, simply amazing. kagan is under fire from orin hatch from utah and jeff sessions saying there are serious questions that need to be answered. a letter was sent to eric holder wanting to know if other things whether elena kagan attended any meetings on the healthcare law, was asked for her opinion on the law or reviewed any relevant documents. she is not the only one facing pressure to recuse herself. clarence thomas is the target of liberals who say his wife's lobbying activity for a group owe proceedings the healthcare law disqualify him from hearing the case. this is nothing new there are often calls for justices to recuse themselves from various cases for a variety of reasons and they rarely do it. some call these latest allegations a lot of political posturing. while others s

leading the charge is against justin elena kagan.he's deeply disturbed about her earlier role when she was solicitor general and getting the healthcare law passed. and also asked to disqualify himself is justice clarence thomas. his wife worked for a group opposing the healthcare law. ted williams and bernie grim joins us. justice kagan and justice come mass, should either disqualify themselves? >> agoan, no, and thomas, yes. when your wife puts bread on the table and you are about to decide a case, whether you are going to continue to eat or not, you have to get off the case. >> ted? >> yeah, i believe that there's a possibility that both should recuse themselves. anytime a supreme court justice may not be able to be partial when it comes to a case, then that person should recuse. and what do i mean by that? when we look at it here, just the smell, should we say, of the financial interest in which thomas's wife has in trying to overthat you know we define as obama care, that in and of itself means that he should recuse himself. as i

now we're seeing justice department e-mails from kagan's time as mr.or general, on the very day the law passed, kagan tells lawrence tribe, serving the justice department, quote, i hear they have the votes, larry. simply amazing. >> if they were closely involved in the health care bill, she would legally be required it recuse herself from the case, but according to the constitution, a justice must recuse even if he or she expressed an opinion concerning the merits of the particular case in controversy. >> let's get this straight. fog focused on justice elena kagan rather than on thomas and scalia? one issue off the bat with the report, they say she should recuse herself because of article 28. that article doesn't exist. temperature doesn't sit she played a big part on the law, so there's no real conflict, but even when fox does talk about justice thomas, they miss half the story. >> clarence thomas is the targets of liberals who say his wife's lobbying activities disqualify millennium from hearing the case. >> no mention of thomas econtention to clemen

two justices in particular are being targeted here, some on the right say justice elena kagan shouldout. keep in mind she was the obama administrati administration's top supreme court lawyer before joining the nation's highest court. then some on the left want justice clarence thomas to bow out because his wife has been very active in conservative causes and that could create a conflict of interest. let's bridge in sunny hostin. sunny, what do you think? should these two justices remove themselves from the health care case? >> well, you know, if you look at the history, i don't think that's appropriate or necessary in this case. i mean, when you think about justice thomas, they're asking that he recuse himself because his wife virginia is opposed to the health care law. judges are allowed to have their own personal opinions and their families and friends are allowed to have their own personal opinions. i don't think that would affect justice thomas in any way. i think elena kagan's position is a little more tenuous, a little -- it's a closer call in the sense that she was the solicit

. >> a key senator goes after liberal justice elena kagan but has no problem with thomas and scalia's conflicts of interest? senator, is your hypocrisy meter broken? and why is john boehner crying again? it's his birthday. he should be happy. we'll have our special birthday wishes. >> happy birthday. >> politics nation starts right now. welcome. i'm al sharpton. tonight's lead, the birth of a new progressive movement in america. marking the two-month anniversary of the middle class movement, protesters across the nation today took to the streets to march for families. in new york city at this hour thousands of protesters are in downtown manhattan enroute to the brooklyn bridge. we've already seen massive marches from zuccotti park to the new york stock exchange as thousands gathered near wall street. for the most part the march was peaceful but more than 170 people were arrested for blocking streets and clogging traffic. at least seven have been injured in clashes. it's not just in new york. in los angeles hundreds marched to the financial district chanting "banks got bailed out we go

kagan because she served as solicitor general in obama before joining the court.se objecting to kagan participation vote to the response to freedom of information request. including one between the then solicitor general kagan and lawrence tribe on the day the house was set to vote on affordable care act. they wrote "i hear they have the votes, larry. simply amazing." whether or not a justice decides to recuse is up to him or her. honor system at the court. no indication they are considering it. bret? >> bret: shannon bream live at the supreme court. thank you. president obama is being criticized for a statement that appears to past aspersions on the american character. chief white house correspondent reports that makes three in the last three months. president obama is highlighting the strength and weaknesses. >> there are a lot of things that make foreign investors see the u.s. as a great opportunity. but we have been lazy i think over the last couple of decades. we take for granted people will come here and we're not hungry selling america. >> in september, pre

justice kagan: mr. lewin, this gets back to the question of exactly what congressional power you are basing your argument on. you started by saying you were basing it on congress's passport power, which is a function of its control over immigration issues. now you are saying congress has a co--equal recognition power. which is it, or is it both? mr. lewin: no. it's in the alternative, justice kagan; it is both. we submit first of all there is no exclusive recognition power in the president, if there is a recognition power, and we spell that out. justice ginsburg: does that go the full length of saying if congress passed a law that says the united states recognizes jerusalem as the capital of israel and jerusalem must be designated as the capital of israel in all official documents -- suppose that were the law. i take it from everything you have argued your position would be yes, congress has that authority. mr. lewin: we say congress has that authority. but i have to add, justice ginsburg, that congress

if thomas or kagan did recuse it could be a title four, which would cause it to stand.s is going to be day when we're sitting here, because it's going to come down at 10:00 in the morning, eastern time, because that's usually when they announce it, and it could shape and it could direct and guide the entire election of 2012. i mean, that's going to be a moment when it comes down. martha: look forward to that in june. bill: new details emergeing in the investigation of the solyndra matter, e-mails suggesting the white house may have tried to influence the elections of 2010, that should make the hearings on capitol hill more interesting tomorrow, won't they? also? >> martha: it's been a good week for newt gingrich,ies been rising in the polls but now questions arise concerning his involvement with fannie mae. co that haunt him? we'll ask ed rolleins for his take on that. nearly $2 million in consulting fees, a lot more than was originally claimed. we'll talk about that. >> your firm was paid $300,000 by fannie mae in 2006. what did you do for that money? >> you're asking

. >> bill: alayna kagan on the left. clarence thomas on the right. let's take justice kagan.t is the argument for her redo you feel. >> she was solicitor general when health care was being debated and discussed on capitol hill. that's the top appellate lawyer. argue on behalf of the government. they say her fingerprints were all over legal discussions about the law. that's what her detractors say. i haven't seen the evidence of that. there were some discussions. they don't seem to be deep discussions. she delegated most of it to her underling. >> bill: but she was involved even in delegates. >> she was involved at some extent she said i will recuse myself if i had a substantial role. >> bill: now she denies having a substantial role. >> i don't know if they have the goods on that. it doesn't matter it's completely up to her if she wants to recuse and she apparently is not recusing. no review for that. bill clarence thomas. >> married to a woman politically active. very voyeur tall in opposition to the health care law, who has lobbied against the health care law and his detrac

but there are questions being raised about justice alen sarks kagan.uring her confirmation hearing she says she was never asked to give her opinion on the merits of the healthcare legislation. she argued cases before the supreme court. but newly released emails show she did seem to back the law while she was solicitor general on a day it was under consideration in congress, she wrote to her colleague in the justice department, quote, i hear they have the votes, larry. two exclamation points. simply amazing. pam bondi is the florida attorney general and she is one of the key players in this case who was happy her case is going to be decided by the u.s. supreme court. pam, thank you so much for being here. i want to get to the merits of this legislation and the big news that the supreme court take up your case. these document were sought after a freedom of information act request. now we see justice kay -- justice kagan was not enthusiastic about the bill. do these emails disturb you? >> i along with 25 of my counterparts have one of the biggest cases in

gregg: there are documents obtained that seem to suggest, elena kagan who sits as an associate justice on the supreme court, when she was solicitor general helped coordinate the obama administration's defense of the health care act. should she recuse herself? and by the way, should clarence thomas on the other side recuse himself because his wife has been intimately involved in trying to strike down the health care law? >> right. a couple of key points here. first of all the way procedurally this typically works is that whether or not a justice decides to recuse themselves is announced at the same time that the court announces whether or not it is going to take the case. that time has passed. neither of those justices recused themselves. so the time for this issue may have already passed. but secondly to the heart of your question, first of all, recusal standards are not based upon what a spouse of a justice has done. so the issue about whether or not justice thomas should recuse himself is off the table because justice thomas himself has not undertaken any activity on his own that wou

kagan a little later was former bush administration speech writer mark thiessen. last night was like a reunion of george w. bush neo conservative foreign policy team members. if those are the guys who are still setting the agenda in the republican party when it comes to foreign policy, you apparently end up with getting republican presidential candidates who sound like this. >> this is one thing we know about barack obama. he has essentially handed over our interrogation of terrorists to the aclu. >> senator santorum, under certain circumstances in the past you've supported profiling, is that correct? >> i have. obviously muslims would be someone you would look at. absolutely. >> we need a strategy of defeating and replacing the current iranian regime with minimum use of force. >> the right course in america is to stand up to iran. >> if we were serious we could break the iranian regime within a year. >> if we're serious about iran, we have to be serious about syria as well. >> this is the time for us to use not only sanctions but covert actions within syria to ge

both are pushing for more documents about justice kagan, whether also with justice thomas there are anumber of lawmakers say he has a conflict of interest because of his wife's work against the healthcare law. how do you think that plays out? do you think either of them even considers walking away from this case? >> our case right now is pending in front of those justices and they are the highest court in the land and ultimately it's their decision. they make the decision whether or not to recuse themselves. all i'm going to say is they are going to do the right thing. they are the highest court in the planned that's why we have them there, and if they choose to hear the case, they will do the right thing. with justice thomas, however, these allegations don't even involve him, it's their wife's involvement so they are much more removed that justice kagan but we are confident that all the justices will do the right thing and here the case if they feel they can be fair and impartial. >> by the way, your gators match up with my seminoles this weekend so i wish for a good game. >> i know.

[laughter] no he's referring to the fact that there have been challenges to elena kagan, who was on top of the obama sliss torrey general. whether she would have to recules. she said she did not get involved herself in any of the litigation strategy so she should not. gwen: that was good. thank you all very much. that's all the time we have. but i assure you the conversation you're listening to here will continue online. check out our "washington week" webcast extra and read my blog, where i read a few of my provocative questions from you on my travels. catch up with us again next week on "washington week" and have a happy and a blessed thanksgiving. good night. >> download or weekly podcast and take us with you. it's the "washington week" podcast at "washington week" online at pbs.org. >> funding for "washington week" is provided by -- >> this rock has never stood city. since 1875, we've been there for our clients through good times and bad. where their needs changed we were there to meet them. through the years, from insurance to investment management, from real estate to retirement s