"I think there is a realization that the court of appeals are in effect our regional Supreme Courts," says Sheldon Goldman, an expert on judicial nominations at the University of Massachusetts at Amherst. "It's the end of the line for 99 percent of all appeals. And it has become clearer and clearer that these judges have wide discretion in interpreting the Constitution, precedents and statutes."
A filibuster of any one of the president's nominees could provide the context for invoking the nuclear option, but the two women nominees, Ms. Owen and Ms. Brown, are the highest-profile cases.
A justice on the Texas Supreme Court since 1995, Owen has had two confirmation hearings: one in 2002, when the committee was controlled by Democrats, and another in 2003, after Republicans had taken back the Senate.
At that hearing, dubbed "setting the record straight," then-Judiciary Committee chairman Orrin Hatch called her treatment by Democrats a "disgrace to the Senate." Owen was the first nominee with the American Bar Association's highest rating to be voted down by the committee, he said.
In response, Democrats noted that two of President Clinton's nominees for the same vacancy, Judge Jorge Rangel and lawyer Enrique Moreno, were both denied even a hearing on their nominations when Republicans controlled the Senate.
Owen, critics say, is a judicial activist whose record shows a bias against the environment and victims of discrimination and medical malpractice. But the most telling critique of the Owen record comes from a voice now inside the Bush administration. As a colleague on the Texas Supreme Court, Attorney General Alberto Gonzales once criticized Owen for an "unconscionable act of judicial activism" by restricting a minor's access to abortion. He now supports her nomination enthusiastically, but the old rebuke still replays often in the debate over her confirmation.