It begins. Barring an 11th-hour compromise, the Senate launches a debate Wednesday on whether to limit the right of senators to speak on judicial nominations - a key decision point in its 216-year history.
In an unvetted moment, GOP Sen. Trent Lott of Mississippi dubbed the proposed change in Senate rules "the nuclear option." Later, GOP leaders tried, without success, to redub the change "the constitutional option." It never stuck.
One reason: Total war fits the tone of this conflict. In the run-up to Wednesday's debate, groups on both sides of the issue, from conservative religious activists to hip-hoppers, waged rhetorical war outside the Capitol, over the Internet, and in rallies and ad campaigns in targeted states across the nation.
Meanwhile, inside the Capitol, lawmakers below the leadership level pursued intense negotiations of their own to avert a showdown over judges and a rule change that
could change Senate procedure and culture well into the future.
"We had majorities, both Democrat and Republican, try to muzzle a minority before, but we've never had a minority willing to retaliate to this extent," says Charlie Cook of the Cook Political Report.
In the closing hours toward Wednesday's showdown, the mantra of both sides has been fairness. Republicans say that the president's judicial nominees deserve a fair, up-or-down vote and that Democrats are violating the Constitution and more than 200 years of Senate precedent by denying it. Ten of President Bush's nominees were blocked in the last Congress, seven of whom have been renominated in the 109th.
Democrats say they want fair treatment for the views of minorities, also enshrined in more than 200 years of Senate precedent. "I'm sorry about their feelings," said Sen. Robert Byrd (D) of West Virginia in an exchange with Sen. Bill Frist (R) of Tennessee on the floor of the Senate last week, referring to the blocked Bush nominees. "But senators have a right to speak."
He added, "Killing freedom of speech in the Senate.... You don't want that legacy."
If a compromise is not reached before Wednesday, the script for the nuclear option plays out something like this: The majority leader brings to the floor a contested nomination, most likely that of Texas judge Priscilla Owen and/or California judge Janice Rogers Brown. At some point, either before or during debate, he or a designee will raise a point of order that a simple majority, rather than the current 60-vote "supermajority," is needed to end a filibuster on the nomination.
Then, it gets murky. The point of order, effectively a rule change, will be decided by the chair, Vice President Dick Cheney, who also serves as Senate president. Mr. Cheney has already signaled he will support the rule change. (In an unusual leak, Senate Democrats say that the parliamentarian will not.) When Democrats appeal the ruling, the matter will be settled by majority vote, with the vice president breaking a tie.
At press time, both sides claimed they had the votes to support their side, but many senators were still not declaring a public position.
Republicans say this rule change will apply only to the president's judicial nominations, but Democrats and some outside experts say that an empowered majority may expand the change to other areas. "Once you go down that road, there will inevitably be a lot of pressure on the majority to expand the filibuster ban," says Sarah Binder, senior fellow at the Brookings Institution.
Another wild card is how Democrats will respond. Since early threats to shut down all but essential or defense-related business in the Senate, Democrats have recast their strategy to one of using Senate procedure to put their own agenda before the Senate.
"We will not shut down the Senate. We will be working harder, longer hours," said Sen. Charles Schumer (D) of New York in a briefing with reporters last week.
A key procedural tool for any minority, unaffected by a rule change on filibusters, is to refuse requests for unanimous consent on issues ranging from dispensing with the reading of bills before they are voted on to demanding individual roll-call votes on the dozens of low-level positions now cleared in seconds on a typical day.
"You can clog the arteries of the Senate very easily and keep it below the threshold of where American people pay any attention to it," says Norman Ornstein, resident scholar at the American Enterprise Institute. "At the same time, you can use the nature of the Senate to bring up your own bills and force Republicans to vote against the minimum wage, protecting Social Security, etc."
In anticipation of such a move, some Senate committees are already rescheduling their work to avoid the need for unanimous consent agreements. "In anticipation of the possibility of a meltdown, we've set a markup schedule, which allows us to do our work without seeking unanimous consent agreements," says Bill Wicker, Democratic spokesman for the Energy and Commerce Committee.
The right of senators to debate has been curbed twice in Senate history: in 1917, after senators filibustered a request to arm merchant ships in wartime, and again in 1975, after epic filibusters to block civil rights legislation. Even with these rule changes, ending debate was a reach, because majority parties have rarely had 60 votes needed to end debate. The simple majority rules puts curbs on the filibuster within reach of any majority.
"It will change the character of Senate," says Robert Dove, a former Senate parliamentarian, now professor at George Washington University.
"Since the 1976 election, no party has had 60 in their caucus. It meant that if you're going to get cloture, it's going to be bipartisan. With the proposed rule change, ending debate becomes a much more partisan tool," he adds.
After both majority leader Frist and Democratic leader Harry Reid signaled an end to negotiations early this week, the moderates on both parties stepped up the hunt for a way out.
"There's a bigger picture here, with all the other business we have to deal with: asbestos, energy bill, appropriations.... All these bills are going to be critical, and I don't want us to be distracted by these judicial nominations," says Sen. Ben Nelson (D) of Nebraska, who is working with GOP Sen. John McCain of Arizona to line up support on each side to vote down the nuclear option in exchange for votes on some of the president's blocked nominees.
Even if the nuclear option passes, some business groups are predicting a less than nuclear winter in the Senate. On Monday, Tom Gallagher, senior managing director of International Strategy and Investment, predicted a "modest effect overall" from a Democratic retaliation.