WASHINGTON — Six-term Sen. Ted Stevens is among the Senate's gruffest members on his best days, but he was downright angry on Feb. 26, 2003. As Democrats blocked another of President Bush's judicial nominees, the Alaska Republican told a group of colleagues and aides, "We can put an end to this now!"
He could march into the chamber, Stevens told them, assume the presiding officer's seat and rule that the minority party could not filibuster a judicial nominee. The idea sparked so much excitement that GOP aides dubbed it "the Hulk," after the fictional green muscleman featured on Stevens' necktie that night, the senator confirmed. For months, "Hulk" was the code word for a plan that Republicans wanted to hide from Democrats.
Stevens' outburst gave birth to a strategy for shutting off debate on judicial nominees with a simple majority, rather than with the 60 votes now required.
His hatching of the Hulk plan, later dubbed the "nuclear option," surely was a turning point. But there were other pivotal moments that led to the current crisis.
In early 2003, Democrats were furious that Bush had resubmitted the name of appellate-court nominee Charles Pickering of Mississippi. While still in power and in control of 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.
Democrats began focusing on a second nominee, Miguel Estrada, a lawyer and a former assistant to the solicitor general. Unlike Pickering, he never had 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.
Some Democrats wanted to add Estrada to their filibuster list. At least a dozen Democrats balked, however, saying 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 luncheon for all 49 Democrats in February 2003, Democratic leaders gave the floor to Sen. Charles Schumer, D-N.Y., Estrada's sharpest critic. Schumer said 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. Republicans threatened lawsuits and political retribution. But not until Stevens raised the "Hulk" option did serious talk of a historic rewrite of Senate precedents ensue. It gained momentum after more than 4,600 Democratic computer files on strategy for blocking President Bush's judicial nominations surfaced. A Senate investigation found that two GOP aides improperly accessed the files.
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. A notion once seemingly unimaginable, Lott and other conservatives now favored it.
But Majority Leader Bill Frist, R-Tenn., was unsure. 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 rules change. White House officials at the time either did not understand the nuclear-option concept or did not think 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 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 rules 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."
Some conservative groups eager to seat more judges who shared their philosophy also pressed Republican lawmakers to forge ahead with the rule change. The White House, however, worried that a filibuster fight would detract attention from the Iraq war and efforts to pass a budget and a prescription-drug benefit for Medicare. So, Frist worked through Martin 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 Republicans picked up at least two seats.
By November 2003, some conservative advocates of Bush's judicial nominees were raising concerns that Frist was not solidly behind efforts to end judicial filibusters. Frist called in several 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 Tom Daschle of South Dakota, over alleged obstructionism and judicial delays. They got what they wanted when Bush won re-election and Senate Republicans expanded their majority from 51 to 55 seats. Daschle was among the casualties.
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 GOP sources said the White House did not seem to take a real interest in the nuclear option until Chief Justice William Rehnquist announced he had cancer about one week before Bush's 2004 re-election. The stakes suddenly were much higher because Democrats potentially could expand their filibuster strategy to include a nominee to the Supreme Court.
"In the last Congress, the White House did not lift a finger," said Weyrich, who speaks often with administration officials. Now "they are very much involved behind the scenes."
Top White House officials privately told senators that Bush wanted them to do everything in their power to guarantee an up-and-down vote for judicial nominees, even if it meant abolishing the filibuster rule. Little more than a week after the election, Frist warned that the newly strengthened GOP 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 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.
On Wednesday, 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."