GOP sees momentum in ending judicial filibusters

WASHINGTON -- Republicans believe they have enough votes to end the filibustering of judicial nominees, a landmark change in Senate rules that would clear the way for President Bush to get conservative judges confirmed but could draw a forceful reaction from minority Democrats, who have threatened to use procedural moves to shut down the chamber in retaliation.

Republican activists working on the issue say they have one last obstacle to making the change -- their second-ranking Senate leader, Mitch McConnell of Kentucky, who is said to be reluctant to take such a radical step. As majority whip, McConnell wields considerable power over the Republican caucus and members would be hesitant to proceed without his approval.

Supporters of the change say McConnell has argued in closed-door leadership meetings that there was not sufficient public clamor for the change. Conservative leaders plan to pressure him while activists work to raise grass-roots anger at Democratic filibusters, procedural maneuvers that have blocked votes on 10 of Bush's most conservative nominees to federal appeals courts.

Senate rules, which were last amended in 1975, require 60 of 100 senators to vote to stop debate and vote on any legislative matter. Democrats, who hold 44 seats in the Senate, have threatened to use the filibuster -- refusing to end debate -- to block any Bush nominee to the US Supreme Court who they say fails to support a ''mainstream" reading of constitutional rights.

Republicans, insisting that filibusters should not keep the Senate from voting on a judicial nominee, want to change the rules to stop the Democrats. Until now, some senior Republican senators warned that the proposal would erode tradition and bring a new level of partisan bitterness to the chamber, which could backfire should Democrats regain power.

But Manuel Miranda, a former top aide for judicial nominations to Senate majority leader Bill Frist, said circumstances have erased many of those hesitations: Democrats show no sign of yielding on their filibusters, Supreme Court battles loom, and Frist, a likely 2008 presidential candidate, has made it a priority to appeal to conservative GOP primary voters by getting conservative judges confirmed.

''We think we have 53 votes," said Miranda, who joined the Heritage Foundation and now leads a regular conference call among conservative groups building support for ending Democratic judicial filibusters. ''The question now is not if but when."

Republicans close to the Senate leadership say they want to force the issue next month by voting to end filibusters in connection with one of Bush's nominees to a federal appeals court, so the rules-change fight will not taint a Supreme Court candidate. There has not been a Supreme Court vacancy in 10 years, but several of the aging justices -- including Chief Justice William Rehnquist, who will turn 81 in October -- have been treated for serious ailments.

''As we get closer to an anticipated opening on the Supreme Court, that creates a sense of urgency to invoke [the rules change] sooner rather than later, so we put that obstacle behind us as we move into a potential Supreme Court battle," said Richard Lessner, executive director of the American Conservative Union. ''If we're going to have a battle over a Supreme Court nominee, let's not also have a simultaneous fight over Senate rules."

A spokesman for McConnell said the senator would support Frist if the majority leader decided to go forward with the plan. ''Senator McConnell always has and continues to fully support the use of what has become known as the 'constitutional' option in order to restore the norms and traditions of the Senate with respect to judicial nominations," he said.

Still, a number of conservatives confirmed that McConnell is seen as a key to the gambit.

''I think when the rubber meets the road, Senator McConnell certainly will be in favor of this," said Kay Daly, president of the Coalition for a Fair Judiciary. ''Those folks who have been around the Senate for quite some time hold the Senate rules in a great deal of reverence, but the fact is the Democrats 'went nuclear' long ago when they decided to filibuster nominees."

Daly said she planned ''to make several phone calls" to McConnell in upcoming weeks. Lessner said the American Conservative Union recently asked its million-plus members to write and call McConnell's office, along with other senators. Other leaders plan to meet with McConnell in person.

Some influential Republicans, including Ed Meese, Ronald Reagan's attorney general, and C. Boyden Gray, George H. W. Bush's White House counsel, also said yesterday that it's time to move on the issue.

Adding to the sense of momentum, conservative columnist George F. Will plans to announce at a Heritage Foundation symposium today that he's changed his mind since writing a strongly worded Newsweek column against changing the rules in December.

Will said in an interview yesterday he is ''genuinely conflicted." His position shifted, he said, after reading a recent Harvard Journal of Law and Public Policy article on the history of the filibuster, and after he grew angry at the Supreme Court when the majority voted 5 to 4 to end the juvenile death penalty earlier this month

Democrats in the last session of Congress filibustered 10 of Bush's appeals court nominees, whom they called conservative extremists. Democrats have contended that different Republican tactics stopped many of Bill Clinton's nominees.

The GOP maneuver to counter the Democrats calls for Frist to ask the president of the Senate -- Vice President Dick Cheney -- to rule that the judicial filibuster rule ended with the last session of Congress or that filibusters can't be used against judicial nominations. Cheney would agree, Democrats would appeal, and the matter would be put to a vote.

A simple majority of 51 Republicans would confirm the ruling, and the rule would be wiped from the books for judicial nominations. All of Bush's nominees for judgeships could then be confirmed on party-line votes.

The proposal has been nicknamed the ''nuclear option" because of the likely fallout: Democrats vow to shut down the Senate by forcing every matter to be brought to a vote, even breaking for lunch, and forcing every item to be read in full.

''The nuclear option will wreak havoc on the Senate and bring Senate business to a screeching halt," said Nan Aron, president of the liberal Alliance for Justice.