For the second time in the Obama admin­is­tra­tion, a Supreme Court jus­tice is step­ping down. The pres­i­dent has named his solic­itor gen­eral, Elena Kagan, to suc­ceed John Paul Stevens on the court. If suc­cess­fully con­firmed, Kagan would be the youngest serving jus­tice, the fourth woman to serve and the third female jus­tice cur­rently serving on the nine-​​member court. Kagan, who was the first woman dean of Har­vard Law School, is widely admired for her knowl­edge of the law. But with no judi­cial expe­ri­ence, she is expected to face tough ques­tioning at her Senate con­fir­ma­tion hearing. In this Q&A, North­eastern law pro­fessor Wendy Parmet dis­cusses some of the issues that are likely to arise.

How does Kagan’s per­ceived ide­o­log­ical slant com­pare with the jus­tice she would be replacing, John Paul Stevens?
Kagan is widely believed to be a mod­erate, per­haps less lib­eral than Jus­tice Stevens. But we really cannot know for sure how Kagan will rule once she is on the court. That is in part because she has not taken public posi­tions on many issues and in part because the views of many jus­tices evolve once they are on the court. Cer­tainly Jus­tice Stevens is viewed as more lib­eral today than he was when he was nominated.

Some very impor­tant admin­is­tra­tion pri­or­i­ties such as health care reform and new reg­u­la­tions in the finan­cial industry are expected to come before the Supreme Court. Given Kagan’s expe­ri­ence as solic­itor gen­eral, will she have to recuse her­self from many cases?
If she is con­firmed, Kagan will likely recuse her­self from cases in which she had per­sonal involve­ment while she was solic­itor gen­eral. In that role, how­ever, she prob­ably has not been involved in the dis­cus­sions about the reg­u­la­tion of the finan­cial industry. It is also unlikely that she has been involved in the lit­i­ga­tion around health reform, because those cases are still at their ear­liest stages, before the solic­itor gen­eral would typ­i­cally become involved. I would expect that sen­a­tors would ask her views about recusal during her con­fir­ma­tion hear­ings, though it is not apt to be a major issue.

Jus­tice Sonia Sotomayor was nom­i­nated for her depth of judi­cial expe­ri­ence. Elena Kagan has no judi­cial expe­ri­ence. How will this factor into the debate on her con­fir­ma­tion?
It can help and hurt her. In recent years, we’ve become used to having Supreme Court nom­i­nees with judi­cial expe­ri­ence. Critics will cer­tainly point to her lack of court expe­ri­ence to ques­tion her qualifications.

On the other hand, many Supreme Court-​​watchers have long been saying that the court could ben­efit from a jus­tice with a dif­ferent career path. Many of our great jus­tices had not been judges before going on the Supreme Court. And the fact that she wasn’t a judge means that she hasn’t written a lot of opin­ions that critics can pick apart.

Although Kagan is female, critics say she adds little diver­sity to the court since she is Ivy League-​​educated, is from New York, and is Jewish, which would leave the court without a Protes­tant jus­tice for the first time in his­tory. Is the kind of diver­sity that Kagan lacks impor­tant to the court’s decision-​​making?
There is some validity to that crit­i­cism. Not only will the court lack a Protes­tant, if Kagan is con­firmed, the jus­tices will all share an Ivy League edu­ca­tion. As the court increas­ingly draws from parts of our pop­u­la­tion that had in the past been excluded, it risks suf­fering from dif­ferent forms of parochialism.

Is there a con­tro­ver­sial issue from Kagan’s past that will seri­ously impact her chance of suc­cessful con­fir­ma­tion?
Prob­ably the most con­tro­ver­sial issue is her sup­port, while dean of Har­vard Law School, of the school’s deci­sion to bar mil­i­tary recruiters from the campus due to the armed forces’ “don’t ask, don’t tell” policy regarding gays and les­bians. Kagan joined many deans from law schools around the country chal­lenging a law that required uni­ver­si­ties to open their campus to mil­i­tary recruiters. Ulti­mately, the Supreme Court rejected that challenge.