After eight failed efforts to break a standoff over two judicial nominations, the Senate GOP leadership is brandishing what insiders are calling the "nuclear" option: a bid to change the rules - and the nature - of the Senate.
Senate Republican leaders are proposing a new rule to end filibusters on judicial nominees by a simple majority vote, rather than the 60 votes that Senate rules now require.
Such a move would challenge one of the deepest personal perogatives in the Senate: the right of Senators to hold the floor and extend debate on issues they deem critical. It would also effectively shut down what is emerging as the Democrats main strategy for influencing judicial nominations.
What's putting the Senate particularly on edge is the prospect that the change may come not by a standard quorum vote, which would likely fail, but by a ruling from the chair, upheld by a simple majority vote.
"That's the nuclear scenario. It blows everything out of the water because it would fundamentally change how the Senate does business," says an expert involved in these deliberations. If such parliamentary machinations succeed, he adds, it could open up other Senate rules to changes.
To outsiders, tinkering with the number of votes required to limit debate may look arcane. But the rules that govern when talk ends and voting starts are the ultimate weapon in Senate politics.
That senators would even consider paring down their rights to debate is a sign of how high the stakes have become on the federal bench - and how bitterly partisan the climate on Capitol Hill.
"It's hard to see how the partisanship on Capitol Hill could get a lot worse, but this move could do it," says political analyst Charles Cook of the Cook Political Report.
The Founding Fathers set no limits on debate in either chamber - an omission that has been criticized before. In 1917, President Wilson called on the Senate to amend its rules on unlimited debate to "save the country from disaster," after "11 willful men" blocked his requests for new powers on the eve of World War I. Later in the century, epic filibusters delayed civil rights and antilynching laws for decades. In response, liberals changed the rules in 1975 to make it easier to end floor debate.
But until recently, the use of the filibuster to block judicial nominations has been rare: It was used only once by Republicans, to scuttle President Johnson's 1968 nomination of Abe Fortas as chief justice. Now, Democrats are using filibusters to block Bush nominees Miguel Estrada and Priscilla Owen to federal appellate courts. More are likely, even on the circuit-court level, say advisers on both sides of the aisle.
"It's very transparent that we're in a high-stakes game, and this is all preparing for fights over the Supreme Court," says Sheldon Goldman, an expert on judicial nominations at the University of Massachusetts at Amherst.
Rumors abound that that any of three Supreme Court justices - Chief Justice William Rehnquist and Justices Sandra Day O'Connor and John Paul Stevens - will announce their retirements by the end of session next month. If so, it would cause an intense fight over who fills the first vacancy on the High Court in nine years.
Issues coming before the federal courts include balancing individual rights against the war on terrorism, affirmative action, abortion rights, sodomy laws, and environmental protection. And powerful lobbies on both sides of these issues have a big stake in how vacancies are filled, especially at a time when the ideological balance on many federal courts is shifting.
Both sides blame the other for making such decisions partisan, and there's plenty of evidence to support either side. In a Rose Garden speech on Friday, President Bush charged that the judicial confirmation process is "broken," noting that eight of his first 11 nominees to the Federal Appeals Court waited more than a year for a vote on the Senate floor; three more are now into year three.
Democrats counter that they have, in fact, approved 124 of the president's nominees, while blocking only two. That's faster than Republicans moved President Clinton's nominees when they controlled the Senate. Moreover, some 60 Clinton nominees never had a hearing before the Senate Judiciary Committee - as effective a block to confirmation as a filibuster, they add.
"When the White House wants to show some degree of moderation, the system works well," says Sen. Charles Schumer (D) of New York, a member of the Senate Judiciary Committee.
The Senate Rules Committee is expected to take up the proposed rule change as early as this week. It lowers the number of votes required to end debate from 60 to a simple majority by increments. Spokesmen for Senator Frist say he is hoping his proposal will set off a "high level debate" in the Senate on how to solve the filibuster problem.
That's when the real fight could begin. "If there's anything that senators consider to be at the very core of their personal power," says Ross Baker, a political scientist at Rutgers University, "it's judicial nominations."