The partisan feuding in the U.S. Senate over federal judicial nominees is leading to a battle on the Senate floor that will have long term effects on the makeup of the federal courts and on the future of the filibuster as a tool in the Senate. The battle has been brewing for quite some time.
The Hulk Plan
Two years ago Senator Ted Stevens of Alaska, upset over the blockage of another of President Bush’s judicial nominees, Miguel Estrada, held an impromptu meeting with a small group of Republican Senators. He described a plan whereby the filibuster against federal judicial nominees could be blocked with a simple majority of 51 votes, rather than the 60 votes needed to invoke cloture under Senate Rule 22.
The bold and unprecedented plan was dubbed, “the Hulk plan,” a reference to the tie that Senator Stevens was wearing which depicted the green comic hero, The Hulk. The Hulk plan was discussed among Republicans and guarded from Democrats as it was not immediately determined whether the Hulk plan was workable or desirable.
The core of the plan was to introduce a Point of Order after a filibuster had begun, asking that debate be limited and that a vote be taken. After the presiding officer sustains the Point of Order, an appeal would be entered, and a motion would be made to table the appeal. This would be a procedural issue which could not be filibustered and which would require only a simple majority for approval. The approval would specify a limited time frame for debate and bring the issue to a vote.
The Nuclear Option
Within a few weeks of the development of the Hulk plan, Senator Trent Lott of Mississippi coined the term, “nuclear option” to describe the rule change process. The Senators realized that the plan would be like a nuclear explosion, resulting in increased alienation of the Democratic and Republican parties and numerous unpredictable consequences.
The Republican leadership realized that they might not be able to produce the 51 votes needed to make the “nuclear option” work, so they set the plan aside until after the 2004 national elections. The elections produced an increased Republican majority in the Senate of 55 Senators. When a straw poll among Senators convinced the Republicans that they could count on at least 51 votes, the Hulk plan was revived.
No Turning Back
President Bush will re-nominate several judicial nominees who were blocked in the last session of Congress. If the Hulk plan, or “nuclear option,” is triggered and successfully upheld, there will be no turning back for the Republicans.
When Justice Abe Fortas was nominated by President Johnson in 1968 to replace Chief Justice Earl Warren, the Republicans successfully filibustered the nomination, causing President Johnson to withdraw the nomination. If the “nuclear option” is successfully used to prevent the Democratic Senators from using the filibuster to block federal judicial nominations, then the Republicans will also find themselves without the filibuster tool in the future when they are the minority party.