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

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."