Everyone thinks that she's on the short list. But should Solicitor General Elena Kagan be nominated and win confirmation to succeed Justice John Paul Stevens she would face a problem that other Supreme Court nominees wouldn't: removing herself from considering a slew of cases that she has dealt with at the Justice Department.

Thurgood Marshall, who was the most recent solicitor general to reach the high court, recused himself from 98 of the 171 cases that the justices decided in the 1967-68 term, or 57 percent of the total, notes Ed Whelan, author of the Bench Memos blog.

Today, Whelan says, the federal government participates in an even higher percentage of judicial disputes, and so as Uncle Sam's lawyer, Kagan would have to remove herself from participating in even more cases than Marshall did. Because the justices often decide contentious cases 5-4, her recusals could wind up deadlocking the Court on some hot-button issues.