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William Rehnquist, Antonin Scalia, and Clarence Thomas won’t be anywhere near the Senate floor. But when the explosive fight over filibustering judicial nominations comes to a head this week, keep this in mind: It’s all about them. The filibuster battle is, in the view of liberal interest groups, a prelude to an ultimate showdown over a Supreme Court nominee � a nominee who presumably would be a staunch conservative with dim views of causes like abortion rights. The prospect of another Scalia or Thomas is frightening enough to liberal activists, but losing the filibuster would also rob them of the only real bargaining chip they have in the nominations process. President George W. Bush’s most controversial appellate judges would undoubtedly all be confirmed, and a far wider swath of potential high court picks suddenly would become available. “I do see the Court of Appeals fight as a lead up to the Supreme Court, because if the advocates of the nuclear option win this procedural vote, then that puts the president in a stronger position to nominate whom he wants,” says Mark Gitenstein, a partner at Mayer, Brown, Rowe & Maw who worked for then-Senate Judiciary Committee Chairman Joseph Biden (D-Del.) during the fight over the high court nomination of Robert Bork. Or as Richard Durbin of Illinois, the second-ranking Senate Democrat, says, “If we don’t put up a fight with the judicial filibuster, we’ll have nothing to shoot.” Right now, public opinion appears to be on the side of the Democrats. A recent CNN-Gallup- USA Today poll showed 52 percent of Americans opposed ending the filibuster; 40 percent supported the move. An ABC News- Washington Post poll found 66 percent of respondents wanted the filibuster retained. But a protracted battle has its risks: Even if Senate Democrats win on the filibuster � a vote too close to call � they could burn through enough public good will and political capital to lose the momentum they might need to block a Supreme Court appointee. Under the so-called nuclear option scenario, Senate Majority Leader Bill Frist (R-Tenn.) will ask for a ruling from the chair � where Vice President Dick Cheney will be sitting � that will permit an end to debate on judicial nominees by a simple majority of 51 senators, not the current 60. If Frist is successful, the Democrats are expected to bring much of the Senate’s business to a halt. Frist said May 13 he would bring the nominations of Priscilla Owen to the U.S. Court of Appeals for the 5th Circuit and Janice Rogers Brown to the 9th Circuit to a vote this week. Democrats will have to tread delicately, however. A shutdown has been tried before, and it was a political disaster for Newt Gingrich and congressional Republicans in the 1990s, helping, among other things, to ensure Bill Clinton’s re-election in 1996. But liberal groups dismiss the notion of a political downside. “Everyone’s getting more engaged,” says Adam Shah, judicial nominations specialist at the liberal interest group Alliance for Justice. “This thing is building to a crescendo,” adds Shah, who believes the surge will peak during the expected Supreme Court nominations later this year. Indeed, Democratic pollster Steve McMahon of McMahon Squier and Associates spins out a potential Republican rout in 2006 if the nominations battle continues apace. “If Frist votes on the nuclear option and loses, the Dems are free to roam about the country, free to filibuster judicial nominees because they won. “If Frist wins the vote, the Dems are free to say, ‘You couldn’t have gotten this nominee if you didn’t change the rules,’ ” McMahon continues. “ They may have lost the battle, but they are setting themselves up to win the war � come 2006.” Of course, the standards for a Supreme Court nominee are higher than those for an appellate judge, and the political dimension has never been more prominent. “There’s a completely new awareness of the power of the Supreme Court since Bush v. Gore,” says Sen. Edward Kennedy (D-Mass.). And that means even Republican senators would not necessarily fall into lockstep behind any one nominee, says Ralph Neas, president of People for the American Way, which strongly supports the filibuster. “The Supreme Court is different,” says Neas. “For many of these Republican senators, much more deference would be accorded to an appellate court nominee than a Supreme Court nominee, who would be setting precedent for 20 or 30 or 40 years.”And if the Democrats lose the fight over the filibuster? “It’s not all over,” says Neas, “but it’s immensely more difficult.” Republicans say liberal and Democratic fears that Bush will push through a hard-right nominee if the filibuster is gone are unnecessarily cynical. “The president gets a bad rap,” says Sen. John Cornyn (R-Texas), who was a state Supreme Court justice during then-Gov. George W. Bush’s tenure. “His nominations when he was governor were all mainstream, and the overwhelming majority of his federal nominations have been as well. The president is not going to appoint somebody who is not qualified or a member of any radical fringe.” Likewise, notes a senior Senate Democratic staffer, “The Republicans have really jumped ahead, imagining all these bogeymen out there.” Senate Democrats, says the staffer, want to be able to support Bush’s high court nominee and are not going to reject a mainstream conservative simply to deny the president his choice. T.R. Goldman can be contacted at [email protected].

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