Even before the 109th Congress convenes, the battle over judicial nominations is shaping up as the defining factor of the session.
Tax cuts and Social Security reform may top President Bush's ambitious to-do list. But with the prospect that Mr. Bush may appoint one or more justices to the Supreme Court, both Republicans and Democrats are girding for an epic confrontation over the judiciary and its broad impact on American life.
Pressed by the most powerful interests in their respective party bases, both sides are already drawing lines in the sand. In speeches and postelection appearances, leaders are floating views on everything from who would be a fit nominee for chief justice to how Senate rules can be changed to limit the minority's power to block a nomination.
"It's a storm warning," says Ross Baker, a political scientist at Rutgers University in New Jersey. In his view, Republicans are threatening tough rule changes as a negotiating ploy. "But the consequences would quickly spread beyond judicial nominations to all the things the president wants to get through, such as Social Security, tax reform, tort reform, and the energy bill."
If Democrats try to filibuster just one more judicial nomination - 10 of 229 Bush nominees were blocked in the 108th Congress - Senate majority leader Bill Frist says he may resort to the "nuclear option," that is, rewriting Senate rules to shut off debate with a simple majority instead of the current 60 votes. If he tries it, Democrats say they could effectively shut down the Senate.
Democrats and civil libertarians worry that if courts tilt further right, consequences could range from a rollback of abortion rights to undermining New Deal bulwarks.
For conservative activists, the stakes are also high. The reason for their intensity is fear that their social revolution may be tapped out unless they can tip the balance in the courts by getting more conservative judges on the bench.
"Social conservatives realize we've accomplished what we can in the legislative arena, and we keep losing in the courts," says Richard Lessner, executive director of the American Conservative Union.
"Time after time, we've seen the same pattern: Any effort to place even reasonable limits on abortion have been pretty much obstructed by the courts. We've played out that line of attack as long as we can. Now the battle is in the courts," he adds. "The Democrats realize this president could remake the Supreme Court."
Exhibit A for social conservatives is the fate of efforts to ban a late-term procedure known as "partial-birth abortion." Within two days of President Bush's signing the Partial-Birth Abortion Ban Act of 2003, federal courts in three states blocked its enforcement. Appeals are pending in Nebraska, California, and New York. Since 1995, at least 31 states have enacted laws banning partial-birth abortions, according to the Congressional Research Service. Many have not taken effect because of injunctions in the courts.
Similarly, President Bush's agenda to empower faith-based and community groups has also run into legal obstacles. Citing constitutional concerns over religious discrimination in hiring, Senate Democrats blocked the Charitable Choice Expansion Act of 2001. After that defeat, Bush issued executive orders directing several cabinet departments to adopt charitable choice rules in their social service programs. Federal courts in Wisconsin, Texas, and the District of Columbia found aspects of these, too, unconstitutional.
The battle over the definition of marriage is another case in point. In anticipation of court fights over the 1996 Defense of Marriage Act, conservative groups are pressing for a constitutional amendment defining marriage as between a man and a woman. Some House Republicans want a bill to block federal courts from hearing challenges to the Defense of Marriage Act.
In the runup to the 109th Congress, groups on both sides are angling for every advantage they can muster for the fights to come. Early on, conservative groups pressured GOP senators to block the designation of moderate Sen. Arlen Specter (R) of Pennsylvania, a supporter of abortion rights, as the next chairman of the Senate Judiciary Committee. In response the four-term senator vowed that he would not "use a litmus test to deny confirmation to pro-life nominees."
Senator Specter even signaled he was open to the "nuclear option" to block Democratic filibusters of judicial nominees. "If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51 votes," he said at a press conference last month.
Democrats say this move could shut down the Senate. "There would be a hellish price to pay by going that route," says a senior Democratic aide. "Ninety-five percent of how the Senate operates is by unanimous consent. Every mid-level assistant in every department of government that now passes by unanimous consent would suddenly require debate and votes."
Civil liberties advocates and liberal groups urge Democrats to hold the line on judicial nominees who could threaten abortion rights or defend too narrow an interpretation of the Constitution.
"What we're seeing is groups on both sides goading members of Congress to be more aggressive," says political scientist Baker. "It's ideological interest groups cracking the whip on politicians. If you're really looking for the origins of polarization in Congress, this is where you're going to find it."