By Jill Zuckman,Chicago Tribune

WASHINGTON – On the surface, the showdown set to erupt today in the Senate seems to be about a handful of conservative judges and the arcane rules that determine whether a nominee will be confirmed.

But just beneath that surface, senators from both parties are engaged in a bitter battle over the limits of the Republican majority’s power, the success of President Bush’s agenda, and the prospects of everything from Supreme Court nominations to big-ticket legislative items, such as Social Security and tax reform.

“It’s a fundamental change in the way the Senate does business,” said Sen. John McCain, R-Ariz., who is trying to negotiate a compromise with Sen. Ben Nelson, D-Neb., to avert the clash over the Senate rules that now allow Democrats to filibuster judicial nominations. “And if it’s OK for judges, why isn’t it OK for legislation?”

Both parties Tuesday were bracing for the long-awaited constitutional battle over judicial nominees in the Senate, as nervous lawmakers worried about damaging an institution historically known for its collegiality and for applying the brakes to the passions of the House.

Today, the Senate is expected to begin debating the nomination of Texas Supreme Court Justice Priscilla Owen to the 5th Circuit Court of Appeals, with Democrats launching a filibuster to kill the nomination. Senate Majority Leader Bill Frist, R-Tenn., has promised to move to a straight up-or-down vote on the nomination regardless of whether he has the currently required 60 votes to first cut off debate. Under Frist’s plan, a simple majority of 51 votes in the 100-member Senate would assure Owen’s approval.

Such a maneuver is highly controversial because it would severely curtail the rights of the minority party, long cherished in the upper chamber. And many lawmakers said such a change could apply to everyday legislation, paving the way for Bush to easily push through his agenda and allowing him to nominate his choices for the Supreme Court without fear of a filibuster.

“It represents a major shift in power because the Senate majority party won’t have to worry anymore as they have had to about winning over even a single Democrat to get what they want,” said Charles Tiefer, a law professor at the University of Baltimore and an expert on congressional procedure.

For now, however, the change would only have the effect of eliminating the filibuster for judicial nominees. The White House continued to press for the change Tuesday, insisting that the president’s nominees should not be left to wither and die due to the intransigence of a few senators.

“We believe very strongly that all judicial nominees ought to receive an up-or-down vote on the floor of the Senate,” White House spokesman Scott McClellan said.

To win the ultimate vote and continue to be able to use the filibuster, the Democrats need six Republicans to defect, to give them 51 votes on the issue. Inside the Senate, the atmosphere was tense as many Republicans refused to say whether they would support Frist’s attempt to change the rules or sign onto some other compromise.

“I don’t have any comment on that,” said Sen. John Sununu, R-N.H., quickly walking away.

Sen. John Warner, R-Va., similarly refused to state his position: “I can more effectively achieve what I want to do by being quiet.”

And Sen. Mike DeWine, R-Ohio, would not say how he would vote, but was adamant that senators needed to find a way to avoid the contretemps.

“I think it’s in the best interest of the country that we work out something,” DeWine said. “This is a confrontation we should not have.”

Since Bush took office, he has made 218 judicial nominations and the Senate has confirmed 208 of them. Ten, including Owen, failed to win confirmation because of Democratic filibusters. Seven of those 10 were re-nominated at the start of this year.

In the fight over judges, both sides have accused each other of violating Senate tradition in pursuit of political goals.

Democrats accused Republican leaders of arrogantly abusing their power, of dismissing the constitutional mandate that senators advise and consent, and of steam-rolling the checks and balances concept that was designed to keep one branch of government from running roughshod over another. They have also noted that 69 of President Clinton’s nominees never received a vote on the Senate floor.

“The White House does not want to slow down,” said Sen. Dick Durbin, D-Ill., the assistant minority leader. “They want to move these nominations straight to the bench.”

Republicans, however, say Democrats broke the rules when they systematically began to kill the president’s judicial nominations with their use of the filibuster and that it is the Democrats who are refusing to advise and consent.

“And that’s why we say 214 years of tradition were shattered in the last Congress, and our simple goal is to restore that 214 years of tradition, to allow these nominees a simple, fair up-or-down vote,” Frist said. “Yes or no, confirm/reject, but a fair up-or-down vote.”

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The Senate battle has also drawn in special interest groups anxious to influence the types of judges who are confirmed and who will rule on the issues important to them for years to come.

“Everybody knows that this is establishing the parameters in the big debate that is looming over a Supreme Court nominee,” said Tony Perkins, president of the Family Research Council, a Christian group that lobbies on marriage and family issues.

At the National Women’s Law Center, co-president Marcia Greenberger said Frist’s decision to try to prevent Democrats from using the filibuster is designed “to push through those very judges whose records show they are fundamentally hostile to some of the most important rights and protections that we as Americans rely on.”

Compounding the problem, said Greenberger, is that “they’d be ruling on the bench for decades after this administration has come and gone.”

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