The Senate Republican leader's threat to outlaw filibusters of judicial nominees is running into significant resistance from his party's moderates, who may be poised to quash the GOP's most potent and controversial option for dealing with Democratic opposition to conservative judges.
A handful of party centrists have expressed varying degrees of opposition to the idea of changing Senate rules to bar filibusters of judicial nominees, including those to the Supreme Court. With Republicans holding a 55 to 45 majority, they can lose no more than five colleagues on the issue, assuming that the Democrats and independent Sen. James M. Jeffords (Vt.) stay united, as many expect.
In recent interviews and statements, four Republican senators have expressed deep reservations about the "nuclear option." At least two others appear to be leaning against it, although less definitively, and several have refused to state a position publicly.
The question appears headed for a showdown in the Senate, where Democrats infuriated Republicans last year by using the filibuster -- a time-honored delaying tactic -- to prevent votes on 10 of President Bush's appellate court nominees. Democrats said the conservative appointees were outside the political mainstream; Republicans said Democrats were abusing parliamentary rules to deny the nominees a yes-or-no confirmation vote.
Both parties call the proposed option "nuclear" because it would inevitably prove explosive.
If Republicans carry out their threat, Democrats vow to use parliamentary tactics to grind the Senate to a standstill. Republicans who oppose the plan say long-standing rules that protect the minority party and encourage bipartisan compromises should be preserved, no matter who holds the majority at a given time.
Bush recently renominated several of the judges that Democrats filibustered last year -- when they controlled 49 seats -- essentially daring the now-weaker minority party to try again. More important, many senators expect a Supreme Court vacancy this year, which could trigger a battle far more intense than those involving appellate judges.
It takes 60 votes to halt a filibuster. Majority Leader Bill Frist (Tenn.) has called the filibusters of judicial nominees intolerable and repeatedly threatened to act to exempt judicial nominations from being filibustered if Democrats do not stop the practice.
"At this point, it's too close to call," Ralph G. Neas, president of People for the American Way, which opposes Frist's proposal, said Friday. If pushed to the wall, said Neas, who previously worked for two Senate Republicans, a slim majority of senators probably will rebuff Frist because they want to preserve the Senate's uniqueness and not make it "just like the House." In the House, where filibusters are not allowed, the majority party generally can ride roughshod over the minority.
Frist could launch the nuclear option on the Senate floor, aides say, by contending a filibuster of judicial nominees violates the constitutional directive for senatorial "advice and consent" on such appointments. The presiding officer -- probably Vice President Cheney -- would agree, and a Democratic challenge to his ruling would be subject to a simple majority vote, not a filibuster, under Senate rules.
If five Republicans joined a solid bloc of Democrats, Cheney could break the 50-50 tie in favor of banning judicial filibusters. If a sixth Republican defected, Frist would fall short.
The GOP leader appears perilously close to that breaking point. In recent weeks, four moderate Republicans have criticized the nuclear option in published remarks that their offices confirmed or did not challenge on Friday. Sen. Olympia J. Snowe (Maine) told the Portland Press Herald, "I just don't see how it's going to benefit us, even in the majority, to change it to a simple majority [vote] because ultimately it could create more wedges and political wounds." Sen. Susan Collins (Maine) "doesn't think the nuclear option is a great idea," her spokeswoman, Jen Burita, said.
Sen. Lincoln D. Chafee (R.I.) has said "I'm not in favor" of the option. And Sen. John McCain (Ariz.) recently told CQ Today he would not support the option because "the Senate should not be like the House."
Meanwhile, Sen. John W. Warner (R-Va.) said in a statement Friday: "I have not reached a firm view on the matter. However, I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations." He said, "I remain to be persuaded that the seriousness of the problem merits such an extraordinary solution," but "the Senate may be forced to take some action to preserve the president's Constitutional obligation to fill [court] vacancies."
Sen. Chuck Hagel (R-Neb.) also has questioned the wisdom of eliminating the minority's right to filibuster, citing times when Democrats ruled the Senate.
At least three GOP senators -- Thad Cochran (Miss.), Ted Stevens (Alaska) and John E. Sununu (N.H.) -- have declined to take public stands on the issue. Democrats hope veterans such as Cochran and Stevens, who have served in the minority, will vote to preserve the filibuster tradition even though they like Bush's nominees.
Senate Democrats, on the other hand, may suffer a defection if Frist tries the nuclear option during a filibuster of an appellate court judge. Sen. Ben Nelson (D-Neb.) did not support last year's filibusters of appellate judge nominees, his spokesman, David DiMartino, said, "But when it comes to a Supreme Court nominee, he reserves the option to do so based on the nature of the nominee."
Frist spokeswoman Amy Call said GOP criticisms of the nuclear option are simply "member-to-member discussions." "The choice is to resume 200 years of precedent [involving advice and consent], or to continue with the obstructions of the last two years." She said Frist "will be having private discussions" with members when Congress gets fully underway this month.
Staff researcher Lucy Shackelford contributed to this report.