More At Stake In Midterms Than Control Of Congress

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With midterm election season in full swing and pollsters predicting an anti-incumbent mood, the balance of power in Washington could shift in November — with potential implications for taxes, health care, education policy and more. NPR's Ron Elving, Former Sen. Bob Graham (D-Fl.) and Republican strategist and former Rep. Vin Weber (R-Mn.) discuss what's at stake as voters head to the polls.


This is the first Monday in October, the day the new Supreme Court session begins here in Washington. And for the second time in as many years, the composition of the court has changed. Elena Kagan replaces John Paul Stevens as an associate justice, which puts three women on the court for the first time in history.

NPR legal affairs correspondent Nina Totenberg was there and joins us here in Studio 3A. Nina, always nice to have you on the program.

NINA TOTENBERG: And it's always nice to be here.

CONAN: And did it feel different there today?

TOTENBERG: It really did. I mean, I have covered the court long enough that I remember when there were no women. And so there was Justice Sotomayor on one end of the bench, the new Justice Elena Kagan on the other end of the bench and very close to the center in a very senior spot, Justice Ruth Bader Ginsburg. And for the first time, I was really struck by today how different it looked and felt. And the person who looked most pleased of all, I think we'd have to say, is Justice Ginsburg who, after all, when she wasn't on the court was a pioneer for women's rights.

And at one point, she even - counsel was arguing some incredibly boring case, and she said to him, counsel you might want to reserve the rest of your time for rebuttal. And that's not something an associate justice usually does. The chief might do that, and I thought, boy, she really does feel empowered.

(Soundbite of laughter)

CONAN: So seating on the court is all by seniority?

TOTENBERG: All by seniority.

CONAN: So the - well, except for the chief justice, no matter what his seniority is sits in the middle.

TOTENBERG: He's at the center, and he's sort of considered the most senior. Justice Kagan asked eight questions today by my count and seemed completely relaxed and - but the person who seemed the most more relaxed, I'd say, is Sotomayor. She was just - it was just like a day at work for her and quite different from last year at the beginning, when she really looked like she was trying to prove that she was up to the job.

CONAN: Well, the pressure's off, in a way.

TOTENBERG: It's totally off her. All eyes today were on Kagan who, you'd have to say, looked entirely comfortable.

CONAN: Well, she'd been there before.

TOTENBERG: As an advocate, and you'd have to say, you know, when she was an advocate last year, she was the government's chief advocate, she had never argued a case in any court prior to becoming solicitor general of the United States. So you can't really call her wildly experienced, but maybe being the dean of Harvard Law School gets you wildly experienced at dealing with a diversity of viewpoints.

CONAN: And maybe some people with large egos as well.

TOTENBERG: Yeah, one might think so.

CONAN: The chemistry of the court, you get to see it there when they're in session, but this is really more established behind the scenes.

TOTENBERG: In their conferences, you know, we don't - nobody in their conferences except them - no law clerks, no secretaries, no nothing. The junior justice, Justice Kagan, answers the door if they want to send a note out or get something brought in.

CONAN: The junior justice goes for coffee?

TOTENBERG: Well, if she - there's usually coffee there.

(Soundbite of laughter)

She doesn't have to go for coffee. But if they want to send for a book or a part of the record or anything, she is the person who goes to the door, hands out the note and says, can you get X? Or, if there's a call, urgent call for somebody or they want to send in a note of something, she's the one who goes to the door and brings the note in.

CONAN: There's going to be all sorts of important cases that come up, including that very boring one you listened to today. But it's been fascinating to have you with us just to describe the atmosphere of the court, and that's going to be interesting to watch all year. Any new court, any new composition, it was the same for so long.

TOTENBERG: For 11 years it didn't change and now we've had in five - the course of five years, we've had four new justices. And although Justice Kagan is a liberal replacing another liberal, John Paul Stevens, you would have to say that we don't really know where she is on a number of issues. For example, she did not vote to stay the execution of a person recently when the other liberals did. She - we don't know where she's coming out on these issues and how her presence will affect other members of the court. So it's going to be very interesting to watch.

CONAN: We heard some of your interview with her predecessor on MORNING EDITION today. Part two comes up tonight?

TOTENBERG: Part two is tonight. Justice Stevens talks about his own father's prosecution and eventual exoneration, and sort of his life on the court, and how he does his - he's a very interesting, and one would have to say, lovely human being.

CONAN: Nina Totenberg, thanks very much. We'll listen with interest.

TOTENBERG: Thank you.

CONAN: NPR legal affairs correspondent Nina Totenberg, with us here in Studio 3A. The Opinion Page, coming up.

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