SAN FRANCISCO (AP) – Janice Rogers Brown’s looming departure from the California Supreme Court is handing Gov. Arnold Schwarzenegger his biggest judicial appointment since taking office in an unprecedented recall election two years ago.

And even though the idea of an “African-American seat” runs counter to Brown’s rulings against affirmative action and racial quotas, legal scholars say Schwarzenegger is probably seriously considering replacing the court’s most conservative member, and only African-American, with another black judge.

While Brown would likely stay through September to resolve the cases she’s already heard, Schwarzenegger doesn’t have much time to make his decision known. The Senate recently ended a two-year filibuster of Brown, clearing the way for a final confirmation vote to the U.S. Court of Appeals for the District of Columbia.

The stakes are high in terms of Schwarzenegger’s legacy: His pick will join a court that is the final arbitrator over disputes involving California law, possibly including a looming lawsuit over same-sex marriage.

While judicial temperament and political background are sure to factor in the search, some legal scholars say race is also important.

Absent Brown, the court would be left with a white woman, an Asian woman, two white men, an Asian man and a Hispanic man. The court consists of six Republicans, one Democrat and is moderately conservative under Chief Justice Ronald M. George, a white Republican.

“I think he’s going to look very hard for a qualified black nominee,” said Jack Pitney, a Claremont College government professor. “It’s a combination of equity and politics. The equity consideration is that African-Americans deserve representation on all levels of government. The political consideration, the failure to name an African-American, would subject him to criticism.”

Brown, a 56-year-old Republican, caught the attention of the Bush administration in 2000 when she wrote the majority ruling railing against affirmative action, labeling it a “benign motivation” that fosters discrimination instead of curing it.

Brown’s detractors said she herself has benefited from affirmative action on her climb up the judicial hierarchy, and she’s said that such policies create doubts in society about the legitimacy of upwardly mobile minorities.

Schwarzenegger’s office wouldn’t discuss Brown’s successor, other than to say he appoints the most qualified judges, regardless of race or gender. Candidates are reviewed by legal affairs adviser John Davies. Schwarzenegger then submits names to a California State Bar committee, which privately reports back to the governor whether they are worthy of sitting on the high court.

That committee in 1996 said Brown was “not qualified,” but Republican Gov. Pete Wilson appointed her regardless.

Whomever Schwarzenegger chooses will be placed under a microscope, no matter their skin color. But making race a factor would be offensive to Brown, said Bruce Cain, a University of California, Berkeley political scientist. “I doubt that she would appreciate it,” he said.

“If it happens to be someone African-American, they should be the best qualified candidate, not the best qualified African-American for the job,” adds John Eastman, a Chapman College legal scholar.

Among the leading contenders, according to court watchers, is Vance Raye, a black member of the 3rd District Court of Appeal in Sacramento who has been a friend of Brown’s for nearly three decades.

Raye, a Republican, voted in April to uphold California’s domestic partner law, which grants gays and lesbians virtually the same rights as California married couples.

Speaking briefly with The Associated Press after a news conference in support of Brown, Raye said the judiciary should be racially diverse in order to represent different points of view, and so he’s “sure it will be taken into consideration” by the governor.

“I know some who have reservations about affirmative action,” Raye said. “Uppermost is the need to appoint individuals of integrity, character and ability, and that overrides almost everything.”

There won’t likely be another vacancy on the court for years, so some legal scholars think race may play perhaps a more important role than party affiliation, especially since Republican Schwarzenegger has aimed to be a governor for “all the people of California.”

“The prospect of not having any black on the court for some time would give the governor pause,” said Gerald Uelmen of Santa Clara University, who studies the California Supreme Court. “Symbolically, it’s very important that the court represent the diversity of California.”

Schwarzenegger has been bipartisan with his 56 lower court judicial picks so far, tapping 29 Republicans, 20 Democrats and seven judges who declined to state their party affiliation on their voter registration. Fourteen were women.

Other potential African-American candidates include U.S. District Judge Saundra Armstrong, a Republican sitting in Oakland; Candace Cooper, a Democrat on the Los Angeles-based 2nd District Court of Appeal; and U.S. District Judge Consuelo Marshall, a Democrat sitting in Los Angeles.

John Burris, a prominent black criminal defense lawyer in California, said skin color should not be the only consideration.

“A black snake,” he said, “will bite you and kill you just like a white snake.”