Second Court Vacancy Triggers a Scramble

The chief justice casts only one vote on the nine-member court but wields influence in important ways. As the titular leader, the chief justice can try to set a tone and philosophical direction. When in the majority on a case, the chief chooses which justice writes the decision, shaping the contours and scope of a ruling. The chief also runs the court's administrative functions as well as those of the broader federal judiciary.

With Rehnquist's death, the senior associate justice fills in as chief -- in this case Justice John Paul Stevens, the court's most consistent liberal voice. For that reason alone, Republican advisers said, the White House will be eager to get a replacement for Rehnquist in place. Also, an eight-member court can divide on 4 to 4 votes that would let lower court decisions stand without setting precedent.

Bush began meeting yesterday with senior aides, including Chief of Staff Andrew H. Card Jr. and White House counsel Harriet Miers, to discuss possible nominees. Aides pulled out files from candidates considered in July.

"We're not starting from standing still," said one senior official, who like others declined to be named because Bush insists on a confidential process. "We have a process that has been developed . . . and now we're in an execution phase." The official said the decision and its timing would be independent of the hurricane relief efforts. "I don't think Katrina will influence that," he said.

Bush seems unlikely to name Scalia because he wants someone young enough to be chief for a generation, advisers said, nor is he likely to ask O'Connor to become chief, as some Democratic senators urged on television yesterday. Although Clement, a judge on the U.S. Court of Appeals for the 5th Circuit, was a finalist behind Roberts, several Republicans close to the White House said they doubted she would be named chief justice.

The idea of making Roberts chief justice seems to have natural appeal. Roberts, a former lawyer in the Ronald Reagan and George H.W. Bush administrations who now serves as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was first interviewed by the White House in April not for O'Connor's seat but in the expectation that Rehnquist would retire or die.

As a former Rehnquist clerk, Roberts could be expected to continue in the same conservative course, and at age 50 he would have a long tenure in the top slot. After six weeks of media scrutiny, he is also a known commodity who has not generated strong opposition among Senate Democrats.

The mechanics of a switch would not be hard. Bush would withdraw Roberts's nomination as associate justice and then simultaneously nominate him as chief justice. Bush could then take his time choosing someone else to replace O'Connor because she has agreed to remain on the court until her successor's confirmation. The president would also be free to focus more intently in the days and weeks ahead on leading the federal response to Katrina.

"That's the right move for a whole variety of reasons and, if I were on the inside, that is what I would be arguing," said Bradford A. Berenson, a former associate White House counsel in the president's first term. "There is the one and only way for the Supreme Court to start its term with nine members and a chief, and that is to nominate John Roberts."

Administration officials said the option was under consideration but would not handicap how likely it is. "Roberts is obviously qualified to be chief justice," one top official said. "The question is if there are arguments on the other side, and there are. We just have to weigh them."

One of the arguments on the other side is not to do anything to complicate a confirmation process for Roberts that has gone smoothly. And Bush knew when he picked Roberts for associate justice that he probably would have a chance to name a chief justice, so he might already have someone else in mind.

If so, some Republican strategists believe it could be Gonzales, a longtime confidant from Texas who served as White House counsel in Bush's first term and would be the first Hispanic to serve on the Supreme Court. Many conservatives howled last summer at the prospect of Gonzales replacing O'Connor because they view him as unreliable on abortion, affirmative action and other key issues, and they renewed the complaints within hours of Rehnquist's death.

"I don't know what they get by alienating the last remaining 35 percent of the country that's really on his side," said a conservative ally of the White House who would comment only if granted anonymity.

But Bush likes Gonzales and might feel compelled to keep the court from becoming too much of a white man's bastion, advisers said. "The pressure to find a woman or a minority if anything will be even greater this time around," Berenson said. Another close adviser to the White House who asked not to be named said, "I have a sneaking suspicion it would be either a woman or Gonzales."