From Senator's 2003 Outburst, GOP Hatched 'Nuclear Option'

washingtonpost.com
From Senator's 2003 Outburst, GOP Hatched 'Nuclear Option'

By Jim VandeHei and Charles Babington
Washington Post Staff Writers

Six-term Sen. Ted Stevens is among the Senate's gruffest members on his best days, but on Feb. 26, 2003, he was downright angry. As Democrats blocked yet another one of President Bush's judicial nominees, he sat in a wooden chair in the Republican cloakroom and told a group of colleagues and aides, "We can put an end to this now!"

He could march into the chamber, the Alaska Republican told them, assume the presiding officer's seat and rule that the minority party could not filibuster this or any future judicial nominee. The audacious idea sparked so much excitement that GOP aides dubbed it "the Hulk," after the fictional green muscleman featured on Stevens's necktie that night, Stevens confirmed in an interview. For months, "Hulk" was the Republicans' code word for a dramatic plan they wanted to hide from Democrats.

Stevens's outburst gave voice to many Republicans' frustrations and birth to a strategy for shutting off debate on judicial nominees with a simple majority, rather than with the 60 votes now required, that is transfixing the Senate and promises a showdown next week unless a compromise is struck. Such a compromise has proved elusive for 27 months, even though many lawmakers think that Senate leaders and the White House could have averted a collision by backing off a bit at any number of crucial junctures.

Instead, the partisan feuding over judicial nominees escalated into a constitutional face-off with far-reaching ramifications for the Senate, federal courts, White House powers and the futures of aspiring presidential candidates. The sharply partisan debate opened yesterday, with the Republican leader charging that Democrats want to "assassinate" nominees, and the Democratic leader denouncing the administration's "arrogant power."

Stevens's hatching of the Hulk plan, later dubbed the "nuclear option," was surely a turning point. But there were other pivotal moments in the saga that triggered retaliatory actions by the two parties and led to the current crisis.


In early 2003, Democrats were furious that Bush had resubmitted the name of appellate court nominee Charles W. Pickering Jr. of Mississippi. While they were still in power and controlled the Judiciary Committee, the Democrats in 2002 rejected Pickering's nomination, citing concerns about his civil rights record. Now in the minority, Democrats announced plans to filibuster Pickering.

Republicans bristled, but many say the nuclear option probably would have stayed in the silo if things had stopped there. They didn't.

Liberal Democrats began focusing on a second nominee, Miguel Estrada, a lawyer and a former assistant to the solicitor general. Unlike Pickering, he had never been a judge and did not have a long record of opinions and decisions. Liberals suspected he was a hard-core conservative, and they grew indignant when he declined to answer their questions fully and the White House refused to provide background documents.

Democrats faced a crucial decision. Some wanted to add Estrada to their filibuster list, a move certain to inflame Republicans. At least a dozen Democrats balked, however, saying that Estrada's blank-slate record provided much less ammunition than did Pickering's, and that a broader filibuster strategy might invite retaliation from voters and GOP lawmakers.

At a Tuesday luncheon for all 49 Democrats in the Capitol's ornate "LBJ room" in February 2003, Democratic leaders gave the floor to Sen. Charles E. Schumer (D-N.Y.), Estrada's sharpest critic. Schumer told his colleagues that Estrada and the White House had shown "total contempt" to the minority party. "We cannot let the courts be hijacked," Schumer, interviewed this week, recalled telling his colleagues.

He and his allies prevailed, and the Estrada filibuster soon began. Republican leaders now realized Democrats were pursuing the extraordinary tactic of trying to block multiple nominees with their powers to delay action. Throughout Senate history, "unlimited debate" -- which can include filibusters -- has been permitted to block action on nominees and most legislation. Since 1975, 60 votes in the 100-member chamber have been required to shut off debate. Republicans held 51 seats in 2003, and 55 seats now.

With the Estrada debate underway, Republicans threatened lawsuits and political retribution. But it was not until Stevens raised the "Hulk" option that serious talk of a historic rewrite of Senate precedents ensued. It gained momentum after Republicans found misplaced computer memos by Democratic staff members talking of even more possible filibusters -- suggesting that the Democrats had a secret plan for blocking several more candidates.

Within weeks of the "Hulk" meeting, former Republican leader Trent Lott (R-Miss.) coined the term "nuclear option" to describe a rule change that would ban judicial filibusters and allow up-or-down votes on the president's nominees. The notion once had seemed unimaginable, but Lott and other conservatives now favored it.

But Majority Leader Bill Frist (R-Tenn.) was unsure at that time. He was new to the leadership job and skeptical that GOP moderates and the Senate's old bulls would go along with so dramatic a rule change. Frist was closely allied with the White House and took some of his cues from the administration. At that time, White House officials either did not understand the nuclear option concept or did not believe it would work, and few GOP senators thought it was a workable solution, said several lawmakers involved in private talks at the time.

Sen. Orrin G. Hatch (R-Utah), who chaired the Judiciary Committee at the time, urged Frist to act right away, and privately expressed frustration when he did not try to push through the rule change before the end of 2003. "I wanted to get it over with," Hatch said this week. "I was kind of a pariah in some ways." Among other things, he encouraged Lott to take a secret vote count to prove to Frist that a majority of Republicans supported the move.

Some conservative groups eager to seat more judges who shared their philosophy pressed Republican lawmakers to forge ahead with the rule change. The White House, however, worried that a filibuster fight would detract attention from the war in Iraq and efforts to pass a budget and a prescription-drug benefit for Medicare. So, Frist worked through Martin B. Gold -- his parliamentary expert -- to try to find a compromise or a basis for changing the rules.

At a September 2003 luncheon held by conservative activist Paul Weyrich, Frist said he did not have the 51 votes needed to change the Senate rules, but vowed to trigger the nuclear option after the 2004 election if the Republicans picked up at least two seats. "If there is any way to do it, he would do it," was the message delivered to about 70 conservative activists that day, Weyrich said.

By November 2003, some conservative advocates of Bush administration judicial nominees were raising concerns that Frist was not solidly behind efforts to end judicial filibusters. Frist responded by calling in several conservative activists to make it clear he was behind the move.

Frist harbored presidential aspirations, and conservatives were starting to let him know that their support in the 2008 GOP primary could hinge on how he handled the judges issue.

Rather than picking a fight over rules in an election year, Bush and Senate Republicans spent much of 2004 hammering Democrats, especially Minority Leader Thomas A. Daschle (S.D.), over alleged obstructionism and judicial delays in hopes of a Nov. 5 breakthrough. They got what they wanted when Bush won reelection and Senate Republicans expanded their majority from 51 to 55 seats. Daschle was among the casualties.

On election night, conservative activists pushing for the showdown held a series of conference calls to plot the end of judicial filibusters.

Bush, claiming a mandate, renominated 20 judges, including seven of those who had been filibustered during his first term. Pickering was not among them. Bush had temporarily appointed him to the appellate court in January 2004, when the Senate was in recess. But with Democrats still bitterly opposing him, he quietly retired in December.

Several Republican sources said the White House did not seem to take a real interest in the nuclear option until Chief Justice William H. Rehnquist announced he had cancer about one week before Bush's 2004 reelection. Suddenly, the stakes were much higher because the Democrats potentially could expand their filibuster strategy to include a nominee to the Supreme Court.

"In last Congress, the White House did not lift a finger," explained Weyrich, who speaks often with administration officials. Now "they are very much involved behind the scenes." The main task for Bush was to make sure it was clear that the White House was in no mood to compromise, he said.

Top White House officials privately told senators that Bush wanted them to do everything in their power to guarantee an up-or-down vote for judicial nominees, even if it meant abolishing the filibuster rule. The Supreme Court often seemed the subtext of the conversations, several Republicans said. Little more than a week after the election, Frist warned in a speech that the newly strengthened Republican majority would not allow filibusters to block action on judicial nominations in Bush's second term.

Some Republicans thought Daschle's defeat would prompt a Democratic retreat. But it had the opposite effect. Sen. Harry M. Reid (D-Nev.), the new minority leader, decided Democrats had no choice but to stand together and fight to protect the one branch of government Republicans did not control outright. At an early January retreat, Reid made an impassioned plea to members to never surrender, participants said.

On Monday evening, as senators were discussing compromises, Tim Goeglein, a senior White House adviser, told about a dozen prominent conservative activists in a conference call that no compromise would be acceptable unless it protects every nominee, participants said. Yesterday morning, the countdown toward the Hulk-nuclear-constitution option officially began when Frist took the Senate floor and said, "I do not rise for party, I rise for principle."