Thursday's vote on the first of President Bush's blocked judicial nominees sets up a test of a "nuclear option" whose fallout could effectively bring the US Senate to a stop for the balance of the 109th Congress - and affect the balance on US courts for decades.
The pitched partisan battle revolves around a change in rules that seem arcane, but the impact could reach a wide range of issues before US federal courts, from consumer and environmental protections to civil liberties and the role of government in the post-9/11 era.
Given the high stakes, with activists on both sides ramping up this week to urge firmness in party ranks, it appears unlikely that moderates can avert a showdown.
The focus, for now, is on the nomination of William Myers to the Ninth Circuit Court of Appeals. The Judiciary Committee is expected to send his nomination to the full Senate with a 10-8 party-line vote - a signal that Democrats plan to filibuster the nomination on the floor. When they do, Republicans plan to use their Senate majority to change the rule for ending debate - killing filibusters with a majority, not the 60 votes now required.
"Both parties understand that this is a dress rehearsal for the Supreme Court," says Sheldon Goldman, a political scientist and expert on judicial nominations at the University of Massachusetts at Amherst. "It's been nicknamed the nuclear option because the fallout would be radioactive as far as our politics goes."
With Chief Justice William Rehnquist expected to retire from the US Supreme Court, the Senate rules on nominations have immediacy beyond the broader question of the ideological tenor of US courts.
Activists on both sides paint it as an epic event: "As Republican leaders prepare to overturn 200-year-old rules in the Senate to eradicate the need for bipartisan support and stack the Supreme Court, we've got to show Democratic and Republican senators that this is a grass-roots issue," said organizers for MoveOn PAC in the run-up to a rally on Wednesday.
Congress watchers speculated that the defeat of Senate Democratic leader Tom Daschle in 2004, largely over alleged "obstructionism" on judicial nominees and other issues, would temper Democratic opposition to the president's nominees. Instead, Democrats are closing ranks over the issue. In a March 1 letter, freshman Sen. Ken Salazar (D) of Colorado, who had been expected to support the Myers nomination, called on Bush to withdraw him and other nominees who have also been blocked previously on Capitol Hill.
"The decision to renominate these individuals will undoubtedly ... sidetrack our collective efforts to work on other crucial matters," he wrote. Democratic leaders said Tuesday that if Republicans change filibuster rules, they will use other procedures to effectively shut down the Senate.
Currently 43 seats lie vacant in the 871-member federal judiciary.
Myers is one of 10 Bush judicial nominees blocked in the 108th Congress by Democrats refusing to allow the nomination to come to a vote on the floor of the Senate. It's the first time a filibuster has been used to block a judicial nomination outside the Supreme Court.
"We have to reinstate majority rule in the Senate. The Myers nomination is the test," says Sen. John Cornyn (R) of Texas. "It is wrong for a partisan minority to argue that a president's judicial nominees must receive a 60 percent vote of the Senate to be confirmed - when throughout history only a 51 percent vote has been required," he said in remarks prepared for an address to conservative activists at the Heritage Foundation Tuesday. When the Senate refuses to act on nominations within a reasonable time, it violates the Senate's constitutional obligation to advise and consent, he adds.
But Republicans blocked dozens of President Clinton's judicial nominees by refusing to let them come to a vote in the Judiciary Committee. "If you trace it back historically, both parties are at fault," said Senator Specter in a press conference last month. Democrats, he said, held up the nominees of Ronald Reagan and George H.W. Bush. When Republicans took control of the Senate in 1995, "we slow-walked [Clinton's] nominees," he added.
A former attorney for grazing and mining interests, Myers has fired up opposition from critics who say he is too hostile to the environment. Specter says he chose Meyers as a first test because he is less controversial than some other nominees.
Specter and other moderates oppose the nuclear option, arguing that minority rights in the Senate must be preserved.