 By MARGARET TALEV McClatchy Newspapers
Senate Majority Leader Bill Frist, R-Tenn., says that this week he'll use the nominations of California's Janice Rogers Brown and Texas' Priscilla Owen to trigger what has been dubbed the "nuclear option." It's a dramatic name for a procedure that sounds technical: If Democrats continue to filibuster nominees they find too conservative _ as they've done with 10 of Bush's judicial picks since he took office _ Frist would ask his party to re-interpret the Senate rules to say filibusters on nominations can be shut off with 51 votes, a simple majority, rather than the 60 votes now needed. Republicans control 55 of the Senate's 100 seats. But if the nuclear option is adopted, its effect could be profound and unpredictable. By guaranteeing up-or-down votes for all judicial nominees, the social conservatives who today control national politics could wield an immediate and long-term influence on the federal courts. The prize is the ideologically divided U.S. Supreme Court, where Chief Justice William Rehnquist, who is fighting cancer, and other aging justices could step down at the end of this term. "They want a Clarence Thomas, not a Sandra Day O'Connor or an Anthony Kennedy or a David Souter," Senate Minority Leader Harry Reid, D-Nev., said, comparing one of the court's most reliable conservatives against Republican nominees who cast swing votes or side with liberals. Conservative groups say that's an appropriate way for the majority party to choose nominees. What's not appropriate, they argue, is for the minority party to be able to block a vote on such a nominee from taking place, if a majority of the Senate is ready to confirm. "We cannot live in a world where filibusters, that is to say minority vetoes, exist as a commonplace matter over judicial nomination," said Sean Rushton, executive director of the Committee for Justice. Frist is expected to call for a discussion on Brown and Owen Wednesday, according to a Republican aide familiar with the strategy. After an "open" period of time, perhaps several days later, the aide said, Frist would call for a vote on either Brown or Owen, not both simultaneously. Which one would go first has not been determined, said the aide, who spoke on condition of anonymity. In either case, if Democrats signaled their intention to filibuster, Frist would ask his party to formally support an interpretation of the Senate rules that says a simple majority can end debate on a judicial nomination. With several Republicans still uncomfortable about the nuclear option, and polls showing Americans wary of it but generally disengaged on the issue, Frist is likely to use the time between the debate and the vote to try to win public support and lock down the majority backing he needs to proceed. If Frist is short one vote, Vice President Dick Cheney could be called in to break the tie. Frist seems serious about moving forward with the procedural threat, after months of delays that frustrated conservatives. But the nominees he has chosen to trigger the fight come as little surprise. Conservatives widely see Brown, a California Supreme Court justice nominated to serve on the District of Columbia Circuit Court of Appeals, and Owen, a Texas Supreme Court justice nominated to the 5th Circuit, as those who might make the strongest case for the nuclear option, individually and as bookends to one another. Both are women. Owen has been waiting four years for confirmation. Brown is an African American and the daughter of sharecroppers. "It helps make the point we're not talking about white males here," said Michael Carvin, a lawyer and former deputy assistant attorney general under President Reagan who worked on the confirmation fights for Thomas, and for Robert Bork's failed nomination.
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