Senate GOP leaders say no final decision has been reached on whether to use this maneuver (which they prefer to call the "constitutional option") and, if so, when. But they have signaled they may do so next year, either shortly after the new Congress convenes in early January or -- more likely, some Republicans say -- after Democrats mount a filibuster against another judicial nominee.
Historically, lawmakers of both parties have engaged in filibusters -- a word derived from the Dutch name for pirates to describe a process of unlimited debate that has been enshrined in the Senate for two centuries -- mostly to block or delay final votes on legislation. But filibusters have also been used against judicial and other nominations, although never in such a systematic manner, Republicans said. In 1968, Republicans filibustered President Lyndon B. Johnson's choice of Supreme Court Justice Abe Fortas to be chief justice, but Johnson withdrew the nomination in the face of Fortas's likely rejection by the Senate.
During Bush's first term, Democrats successfully filibustered 10 of Bush's 52 nominees for appeals courts, while acceding to the confirmation of 35 others. The appeals court confirmation rate was low, but not as low as the rate for President Bill Clinton's second term, Democrats said.
Democrats contend the 10 filibustered judges are too far outside the legal mainstream to warrant lifetime appointments, describing them as the cutting edge of an effort by Bush to pack the courts with ideologically driven conservatives. They also argue that, during the Clinton administration, the GOP majority in the Senate blocked action on dozens of judicial nominations, without need for a filibuster because they could use their majority-party powers to bury nominations in committee or block them through anonymous "holds" on the Senate floor.
Republicans counter that, even though the number of filibustered nominations is small, the Democrats are trampling on the Constitution by denying a straight up-or-down vote for even a single nomination. The Constitution, they note, requires two-thirds majorities for treaties, constitutional amendments and other specific matters but calls for only the "advice and consent" of the Senate on judicial choices, with no reference to any super-majority for confirmation.
Democrats disagree, arguing that the Constitution empowers Congress to set its own rules of operation and does not specify the size of a majority needed for judicial confirmations because the issue was to be left to the Senate to decide. "What about all these people who say they want a literal reading of the Constitution?" asked Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.
Although frustrated Senate leaders have resorted in the past to tactics involving at least some aspects of the nuclear option, none of the confrontations approached the significance -- or political explosiveness -- of the current dispute, with implications stretching beyond the issue of judicial nominations.
Although it would not directly threaten filibusters on legislative issues, critics believe it could open the door to further erosion of the Senate's long tradition of unlimited debate as a last refuge for political minorities and a brake on precipitous action by presidents and legislative majorities. Although Bush would have an easier time getting the judges he wants, Democrats warn that he could run into trouble on Social Security, tax simplification and other major second-term initiatives that will probably require Democratic cooperation for passage.
Use of the nuclear option "would make the Senate look like a banana republic . . . and cause us to try to shut it down in every way," Schumer said. "Social Security and tax reform need Democratic support. If they use the nuclear option, in all likelihood they would not get Democratic support" for those and other initiatives, he added.
Republicans considered the nuclear option last year but backed off because they lacked the votes to prevail. Emboldened by a gain of four seats from the Nov. 2 elections, many of its most ardent supporters believe they now have the votes to win.
Staff writers Charles Babington and Charles Lane contributed to this report.