Washington Post:
As speculation mounts that Chief Justice William H. Rehnquist will step down from the Supreme Court soon because of thyroid cancer, Senate Republican leaders are preparing for a showdown to keep Democrats from blocking President Bush's judicial nominations, including a replacement for Rehnquist.
Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the "nuclear option," to thwart such filibusters. "One way or another, the filibuster of judicial nominees must end," he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a "formula for tyranny by the minority."
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Democrats, however, face several constraints. Democratic strategists said that some of the party's senators from states Bush carried in the presidential election could be reluctant to support a filibuster for fear of being portrayed as obstructionist -- a tactic the GOP used successfully in congressional elections this year and in 2002.
With a Supreme Court nomination, Democrats could be blamed for deadlocking the court at its current four conservatives and four liberals, making it impossible for the court to decide the toughest cases.
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Several knowledgeable lawyers said the White House has discussed a strategy of explaining a conservative pick by saying that the nominee is of the same stripe as the justice being replaced. "Anybody except for a strong ideological conservative is a waste of a fight," one adviser said. "What they plan to say is that they would not be fundamentally changing the makeup of the court."
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At issue is a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority or 51 votes to uphold the ruling -- far easier for the 55-member GOP majority to get than the 60 votes needed to break a filibuster or the 67 votes needed to change the rules under normal procedures.
It would then take only 51 votes to confirm a nominee, ensuring approval of most if not all of Bush's choices.
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