KWAME HOLMAN: It's being called the nuclear option, and while the visual analogy might be overly dramatic, the continuing Senate stalemate over several of President Bush's judicial nominations could explode soon if the so-called nuclear option is exercised by Republican leaders.
SEN. CHARLES SCHUMER: It would turn the United States Senate, everything all of us have worked for and worked in, into a legislative wasteland.
KWAME HOLMAN: That's New York Democrat Charles Schumer describing what will happen if Republican leader Bill Frist attempts to change the practice by which Democrats have been able to block court nominees, the filibuster.
SEN. BILL FRIST: But we have for the first time ever we have people saying, "You can't vote on them." That's the difference. That's the problem.
KWAME HOLMAN: Senate rules permit unlimited debate on legislation unless 60 senators agree to stop talking and move to a deciding vote. Republicans currently hold a 55-seat majority.
But Sen. Frist said the filibuster should not apply to judicial nominations. If Democrats try to block another nominee, Frist, exercising the nuclear option, would ask the president of the Senate, Vice President Dick Cheney, to rule that filibusters of judicial nominees are unconstitutional.
Mr. Cheney would agree with Frist and the vote to affirm his ruling would require only a simple majority, 51 votes. Texas Republican John Cornyn prefers not to call it the nuclear option.
SEN. JOHN CORNYN: What we are suggesting is not a nuclear option. What we are suggesting is perhaps a constitutional option. What we are suggesting is a restoration of majority rule option.
But it is nothing radical and it is indeed in keeping, not only with the traditions of the United States Senate but also in keeping with the Constitution and laws of the United States.
KWAME HOLMAN: Senate Democratic leader Harry Reid couldn't disagree more and recently brought every Senate Democrat out onto the Capitol steps to condemn the Republicans' approach.
SEN. HARRY REID: In order to break down the separation of powers and ram through their appointees to the judicial branch, President Bush and the Republican leadership want to eliminate a 200-year-old American rule saying that every member of the Senate can rise to say their piece and speak on behalf of the people who sent them here.
KWAME HOLMAN: Successful use of the nuclear option could render Senate Democrats almost powerless to stop President Bush's choices including nominees to the Supreme Court. But Democrats have warned their response will be to use Senate rules to bring the chambers' work to a halt.
First, they still could use the filibuster to hold up all other legislation that comes to the Senate floor. And they could slow to a crawl the Senate's routine business that's normally accomplished quickly using unanimous consent decrees whether it's to by-pass the reading of entire bills.
SPOKESPERSON: Mr. President, I ask unanimous consent that the reading of my amendment be suspended.
SPOKESPERSON: Without objection.
KWAME HOLMAN: Or to add written statements to the congressional record.
SPOKESPERSON: I ask unanimous consent to put the ballot to this letter and other letters in the record.
SPOKESPERSON: Without objection.
SPOKESPERSON: And I yield the floor.
KWAME HOLMAN: Or to allow committees to meet.
SPOKESPERSON: Mr. President I have one unanimous consent request for a committee to meet during today's session of the Senate.
KWAME HOLMAN: But any one senator can object and insist that every bill be read or every vote, no matter how insignificant, be taken.
SPOKESPERSON: I read your order, Mr. President.
KWAME HOLMAN: Both sides agree the result would be that very little work would get done. Arizona Republican Jon Kyl warns that would be risky.
SEN. JOHN KYL: That's a political calculation they have to make but the people didn't send us here to blow the place up and not take action on important work that the Congress needs to do. So if they resort to that nuclear reaction to Republicans following the precedent of the Senate, I think it would be very, very unfortunate.
KWAME HOLMAN: Although Democrats point out that they allowed more than 200 of President Bush's nominees to be approved during his first term, Republicans counter that Democrats continue to block ten important appointments to federal courts of appeals. And so after his reelection victory, the president sent them back to the Senate for another try.
PRESIDENT GEORGE W. BUSH: I earned capital in the campaign, political capital. Now I intend to spend it.
KWAME HOLMAN: To which Democratic leader Reid responded.
SEN. HARRY REID: On the judges that have been brought forward previously we're going to treat them just the same we have in the past.
KWAME HOLMAN: California Democrat Diane Feinstein.
SEN. DIANNE FEINSTEIN: I must say as much as the Republicans have made a drum beat, a campaign issue, I don't really believe that it deters any of us from our mission. And that mission is to give proper advice and consent on judicial appointments.
KWAME HOLMAN: But Sen. Kyl says the advise and consent role should include an up-or-down vote as well and changing the Senate rules may be the only way to guarantee it.
SEN. JON KYL: There may well come a Supreme Court vacancy soon. I just don't think the people of the country are going to stand by and let a minority dictate whether or not we're even going take a vote on a nominee.
KWAME HOLMAN: During Bill Clinton's presidency, the Republican majority blocked dozens of his nominees from ever getting to the floor, bottling up some 60 of them in committee instead.
SEN. DIANNE FEINSTEIN: They never got a hearing or they never got a committee vote. They never came to the floor.
KWAME HOLMAN: Today with Republicans sounding increasingly serious about using the nuclear option, liberal interest groups are broadcasting television ads in 18 states warning of conservative plans to accomplish an ideological shift on the courts.
AD SPOKESPERSON: We're a two-party system. America works best when no one party has absolute power. It's just plain common sense. So write your senators today, don't let anyone kill the filibuster.
KWAME HOLMAN: And conservative organizations are applying pressure of their own with this ad running nationwide.
AD SPOKESPERSON: The president believes judges shouldn't impose political views, yet his nominees are blocked by a minority of liberal senators. Contact your senators. Tell them to support a fair vote on judges.
KWAME HOLMAN: And now Sen. Frist himself has decided to step out and join the public relations offensive. This weekend he'll appear on a religious telecast focused on how judicial filibusters are "being used against people of faith." Democrats cried foul.
SEN. JOE BIDEN: This is simply, simply not fair, and it's demagoguery.
KWAME HOLMAN: Meanwhile, at least one moderate Republican senator has tried to find common ground between the two sides. Arlen Specter is chairman of the Senate Judiciary Committee.
SEN. ARLEN SPECTER: I believe the American public is sick and tired of this wrangling, especially over federal judges or the administration of justice, and I think there's a lot of pressure on both sides. And I apparently have come up with a word that is in disuse in Congress, and it's called "compromise."
SEN. ARLEN SPECTER: I ask for the yeas or nays on this nomination.
KWAME HOLMAN: And there have been some signs of progress on that front. Last week the full Senate unanimously confirmed Paul Crotty to a seat on the federal district court in New York City, the first judicial confirmation of the president's second term.
SEN. PATRICK LEAHY: Doesn't this send a good signal to the country, when you have a vast majority of Republicans and a vast majority of Democrats voting for someone who is going on the federal bench? It shows that you've done it right.
SPOKESPERSON: Mr. Chairman, the votes are fourteen yea, four nay.
KWAME HOLMAN: And with the help of four Democrats, including California's Feinstein, the Judiciary Committee approved and sent to the Senate floor the nomination of Utah lawyer Thomas Griffith to a seat on the court of appeals for the District of Columbia. Democrats initially had vowed to block Griffith.
SEN. DIANNE FEINSTEIN: I've given this nominee a lot of thought and reflection. And I've decided that I will vote for him.
KWAME HOLMAN: Other prominent Democrats have pledged to support Griffith's nomination once it gets to the Senate floor.
SEN. CHARLES SCHUMER: I think it shows how accommodating we're being.
KWAME HOLMAN: But there are other nominees, such as Priscilla Owen and Janice Rogers Brown, who Democrats remain firmly against.
SPOKESPERSON: I think both of these nominees would be a serious mistake.
KWAME HOLMAN: Still, Judiciary Committee Chairman Specter hopes both sides will avoid taking drastic actions.
SEN. ARLEN SPECTER: My strategy is to use every ounce of my energy to try to confirm President Bush's judges without going to the so-called "constitutional" or "nuclear option."
KWAME HOLMAN: But Sen. Kyl says Democrats may give Republicans no choice.
SEN. JON KYL: Our Democratic colleagues have to make a decision. Will they continue their filibuster or not? If they do, and they're not willing to discuss any kind of a compromise, then I don't see any alternative but to reestablish the tradition of the majority vote.
KWAME HOLMAN: Yet before Majority Leader Frist decides to "go nuclear," he wants to make sure he has the 51 votes needed to make it work. To date, at least half a dozen members of the 55-strong Republican majority have said the thought of changing the Senate rules does not necessarily appeal to them.