Republican leaders say Democrats are being hypocritical to come out swinging against Supreme Court nominee Neil Gorsuch when they supported him in his previous judicial confirmation.
Senate Majority Leader Mitch McConnell of Kentucky is one of the Republicans who rushed to support Gorsuch after President Donald Trump nominated Gorsuch on Jan. 31.
McConnell’s general point is correct: the Senate confirmed Gorsuch for a court of appeals seat by unanimous consent in 2006. That means there was no roll call vote, but news articles at the time show no dissent in the Senate. (Our fact-checking friends at Snopes previously looked at similar claims.)
Gorsuch in 2006
Gorsuch was nominated by President George W. Bush on May 10, 2006, for a seat on the U.S. Courts of Appeals for the 10th Circuit based in Colorado.
His nomination drew scant media attention and few comments from senators.
On the day his name was announced, the Democratic senator from Colorado, Ken Salazar, didn’t instantly commit to backing him but offered early praise: "I have recently met with Mr. Gorsuch and believe he has impressive credentials."
The Denver Post wrote that Gorsuch glided through a 20-minute Senate Judiciary Committee hearing June 21. Salazar and Colorado’s Republican senator, Wayne Allard, "introduced Gorsuch, both giving glowing reviews," the Post wrote.
That committee approved Gorsuch by a voice vote on July 13.
When Gorsuch moved on to the full Senate July 20, Salazar had more praise for the "intelligent, thoughtful and appreciative" nominee, saying Gorsuch met a "very high test" to join the 10th Circuit Court of Appeals.
U.S. Sen. Patrick Leahy, the top Democrat on the Judiciary Committee, opened his remarks in an earlier hearing by saying Gorsuch's record showed he "appears to be a very conservative nominee."
But before the Senate July 20, Leahy was on board with the nomination of Gorsuch and three other nominees: "I am pleased that the Republican leadership has scheduled debate and consideration of these nominations and am glad that the Republican leadership is taking notice of the fact that we can cooperate on swift consideration and confirmation of nominations. Working together, we can confirm four judges today. "
McConnell’s spokesman Don Stewart said that any member could have gone on record with an objection but none did.
"The Congressional Record lists no objections," he said. "There was unanimous consent to the vote."
Republicans have noted that Democrats in the Senate at the time include some major party heavyweights: Chuck Schumer, Hillary Clinton, Barack Obama, Joe Biden and Harry Reid.
However, the majority of current senators were not in the Senate in 2006. And the stakes now are higher, says Sarah Binder, George Washington University political science professor.
"Senators may view the prospects of confirming a nominee to the court of appeals differently than they view a nominee for the Supreme Court," she said. "The stakes of confirming someone to the Supreme Court are really just so much higher and more salient to the public. Senators should scrutinize any lifetime appointment to the bench -- but especially those to the Supreme Court."
Many judicial nominees have sailed through confirmation by unanimous consent or in a unanimous roll call vote. But the process has become more acrimonious in recent years, and roll call votes became more common under the presidencies of George W. Bush and Barack Obama.
Binder said that recorded roll call votes on appellate court nominees were very rare before 1997.
"Starting in late 1990s, Republicans in the Senate majority started to call for recorded votes as a way to put senators on record for or against Bill Clinton's judicial nominees," she said. "Since then, recorded votes have been more likely (as have cloture votes on those nominees)."
Russell Wheeler, a judicial expert at the Brookings Institution, pulled together data on circuit court nominations during the presidencies of Clinton, Bush and Obama using the U.S. Senate website, the Federal Judicial Center’s Biographical Directory of Federal Judges, Congress’s "Presidential Nominations" website, and Congressional Record reports.
During Bush’s tenure when Gorsuch was confirmed, Wheeler’s data shows 12 circuit court nominees confirmed through voice votes and 30 through roll call votes that were unanimous. There were three confirmation votes in which there was only one "no" vote and 14 in which there were multiple "no" votes.
Decades ago it was common for nominations to sail through without objections from the opposing party, "but things have gotten more contentious," Wheeler said.
McConnell said, "Not a single Democrat opposed Neil Gorsuch's confirmation in 2006."
Gorsuch was approved by unanimous consent by the Senate for a court of appeals seat during Bush’s presidency. That means no roll call vote was required, but senators could have raised objections but none did.
The majority of circuit court confirmations under Bush occurred through unanimous consent or by a roll call vote that was unanimous.
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