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

By Jim VandeHei and Charles Babington
Washington Post Staff Writers
Thursday, May 19, 2005

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.

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