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WITH THE WHITE House and the Senate both in Republican hands, GOP-nominated Justices William Rehnquist, 78, and Sandra Day O’Connor, 72, are considered most likely to depart. Some reports suggested that Rehnquist has already given President George W. Bush a heads up on his departure. But a senior administration official dismisses the idea, saying the White House has no “inside information.”
Bush aides had contemplated the idea of elevating Associate Justice Antonin Scalia, 66, to replace Rehnquist as chief. Some administration officials relished the idea of courting a major confirmation battle over Scalia—a folk hero to conservatives. Nominating Scalia to be chief would fire up Bush’s conservative base, some argued. And some Democratic senators might find it tough to oppose Scalia since they already voted for him once: he cleared the Senate by a vote of 98-0 in 1986. But in the end, sources tell NEWSWEEK, White House officials rejected the idea, concluding that the brilliant but pugnacious justice would not be a consensus builder—an important quality for a chief justice. “We discussed it seriously, but rejected it definitively,” says a source familiar with the process.
Many strategists have predicted Bush will fill the open seat with the court’s first Hispanic justice. Early betting centered on White House counsel and Bush confidant Alberto Gonzales. But some elements of Bush’s conservative base seem to have cooled on the idea. And White House insiders say Gonzales himself has never been enthusiastic about going on the high court. (More likely, the sources say, is that Gonzales, succumbing to President Bush’s personal entreaties, would fill a second vacancy.) Other possibilities: appellate Judge Emilio M. Garza of Texas and, if he’s confirmed to the D.C. Circuit Court, lawyer Miguel Estrada.

Other observers think Bush could take another approach, appointing California Supreme Court Justice Janice Rogers Brown instead. Brown is a conservative African-American who’s ruled against affirmative action and abortion rights. Her nomination would let Bush add the court’s third woman and second African-American in one swoop. And White House lawyers have already interviewed her. Tom Goldstein, a Washington lawyer who argues cases before the court, believes Brown could even get the nod for chief justice. “An African-American female nominee is not going to be filibustered,” he says. “She doesn’t have a record that will stop Democrats in their tracks.” And after months of bitter Senate fights over nominations to lower courts, that could have an appeal all its own.