Bush Ally Is Top Contender for Nomination to Supreme Court

WASHINGTON —  White House Counsel Alberto Gonzales, the soft-spoken son of migrant farm workers, has emerged as the overwhelming favorite for a Supreme Court nomination in the months ahead, a move that would give President Bush a historic and politically powerful chance to name the first Latino to the nation’s highest court.

Gonzales’ ascension has been remarkable -- from a childhood home without hot running water, to Harvard Law School, to the White House. He has been a trusted friend of the president since Bush recruited him as a general counsel when he was elected governor of Texas in 1994.

Now the 47-year-old former Texas Supreme Court justice is in charge of the process for recommending a Supreme Court nominee.

Two years ago, Dick Cheney, another trusted Bush advisor, was put in charge of selecting a running mate for Bush and emerged with the job.

The process could repeat itself.

“He has a huge lead over everyone else,” one administration official said of Gonzales.

If Bush names Gonzales to replace Chief Justice William H. Rehnquist, a prospect that is becoming more likely, conservatives worry that the president will shift the high court to the left, not the right, on key issues such as affirmative action and abortion.

The usual speculation over a Supreme Court vacancy grew more intense after November, when Republicans retook the Senate. Rehnquist, 78, had said he preferred to step down when a Republican president could fill his seat.

And all of the justices say they do not want to retire during a presidential election year. So, if 2004 is out, that means 2003 is the year for Rehnquist and possibly Justice Sandra Day O’Connor, 72, to retire.

Rehnquist has been hobbled by knee surgery since late November. A few days before Christmas, the chief justice, walking slowly with a cane, went to see Bush at the White House. The unannounced visit has only heightened speculation that he will retire at the end of the court’s term in late June.

Rehnquist took his seat on the Supreme Court in January 1972, the fourth and final nominee of President Nixon.

He compiled an unwaveringly conservative record on matters ranging from crime and the death penalty to abortion, religion, affirmative action and free speech. President Reagan elevated him to be chief justice of the United States in 1986.

Rehnquist is fond of saying that as chief justice he has only one vote, the same as his eight colleagues. But filling Rehnquist’s seat as chief justice could pose a special problem for the White House. At first glance, some legal experts say Gonzales lacks stature and experience as a federal judge. But other options also do not appear promising on second glance, administration lawyers say.

One popular choice would be to elevate O’Connor, the first woman to serve on the high court. If Bush named her to replace Rehnquist and chose Gonzales to fill her seat, the president would get credit for two historic firsts. O’Connor would be the first woman to head a branch of the U.S. government.

But in a television interview this year, O’Connor herself offered the best counterargument. “I’m too old,” she replied firmly when asked about her possible promotion.

Conservatives would be happier if Bush promoted Justice Antonin Scalia, 66. While O’Connor has voted to preserve the right to abortion, the ban on official school prayers and the Miranda decision that allows criminal suspects to remain silent, Scalia has voted to reverse all three.

Scalia, along with Rehnquist and Justice Clarence Thomas, form the court’s conservative wing. During the presidential campaign, Bush cited Scalia as his favorite justice.

But liberal activists and Senate Democrats could unite against a Scalia nomination. An easy confirmation for Gonzales would turn into a bitter fight if his nomination is coupled with Scalia’s elevation.

“It would be a risk to go with Scalia. I wonder whether the Senate would confirm him,” said Nan Aron, who heads the liberal Alliance for Justice.

Liberal Republicans, such as Sen. Arlen Specter of Pennsylvania, played a key role in killing the Supreme Court nomination of Judge Robert Bork in 1987. A supporter of abortion rights, Specter said he wouldn’t vote for a court nominee who was determined to overturn Roe vs. Wade.

Scalia has vowed to oppose the abortion right at every opportunity. Specter, a senior Republican on the Senate Judiciary Committee, would stand as an important obstacle to his confirmation.

If Rehnquist and O’Connor were to retire in the spring, Bush could nominate J. Harvie Wilkinson, the chief judge of the U.S. 4th Circuit Court of Appeals in Virginia.

He is a well-liked and highly esteemed conservative judge whose past includes clerking for Supreme Court Justice Lewis F. Powell, working as a lawyer in the Reagan administration and serving as editorial page editor at the (Norfolk) Virginian-Pilot.

Wilkinson, 58, has been at the top of the White House list of candidates. Two weeks ago, Gonzales chose as deputy White House counsel David Leitch, a 41-year-old lawyer who clerked for Wilkinson and Rehnquist.

But unlike with Gonzales, Bush would not get a political boost from naming Wilkinson to the Supreme Court.

Other leading candidates include Arizona Republican Sen. Jon Kyl, a favorite of Atty. Gen. John Ashcroft; Deputy Atty. Gen. Larry Thompson; and Judge J. Michael Luttig, a conservative who worked in the first Bush White House.

Last year, conservatives focused their hopes on Miguel Estrada, a native of Honduras and Bush’s nominee to the U.S. Court of Appeals in Washington. If he had been confirmed, he could have emerged as an alternative to Gonzales. But the Democrats have stalled his confirmation, leaving the way clear for Gonzales.

He was born in San Antonio, the second of eight children of Pablo and Maria Gonzales. The two had met as teenage farm workers, and neither went beyond the sixth grade in school. After high school, Alberto enlisted in the Air Force and later won a spot at the Air Force Academy in Colorado Springs, Colo. But he left after two years, graduated from Rice University in Houston and earned a law degree from Harvard.

Soon after Bush won his first race as governor of Texas, he recruited Gonzales, and the two have worked together since, except for Gonzales’ two-year stint on the Texas Supreme Court.

As White House counsel, Gonzales has moved to strengthen Bush’s power as a wartime commander by saying, for example, that the president on his own authority can designate terrorism suspects as “enemy combatants” and lock them up without criminal charges, a trial or even access to a lawyer.

At the same time, he has moved to shield the White House from outside scrutiny. His office refused a request from the General Accounting Office to learn who met with Vice President Cheney when he was formulating the administration’s energy plan.

The GAO went to court, but the administration won the first round when Judge John Bates, a new Bush appointee, threw out the lawsuit.

Gonzales also won plaudits from conservatives for ending the American Bar Assn.’s long-standing special role in evaluating judicial nominees and for surrounding himself with young lawyers with conservative credentials. They include Brett Kavanaugh, 37, formerly a key staffer for Independent Counsel Kenneth W. Starr and the reputed author of much of the “Starr Report” that called for President Clinton’s impeachment.

Nonetheless, many conservatives have remained wary of Gonzales, believing he has a moderate-to-liberal view on issues such as affirmative action and abortion.

A key test will come in the next three weeks when the White House must decide whether to intervene in the pending Supreme Court case involving the University of Michigan’s affirmative action policy.

Last year, in an interview with The Times, Gonzales said he was not troubled with the notion of using a person’s race or ethnicity as one factor in their favor.

“I know that I’ve been helped because of my ethnicity,” he said. “Personally, I’m not offended that race is a factor. But it should never be the overriding factor or the most important factor.”

That moderate position on affirmative action is troubling to many conservatives, who hope that the White House will side with Rehnquist and Scalia in calling for a strict ban on the use of race in college admissions.

“There has been a worry from the beginning among conservatives that Gonzales is not reliable on abortion and racial preferences, two very important issues for conservatives,” said Roger Clegg, general counsel for the Center for Equal Opportunity. “I think the president’s base feels very strongly about this issue, and they’ll be very unhappy if the administration goes the wrong way on it.”