One of the Senate’s many conventions, not objecting to someone or something does not always equate to being for someone or something.
Voice votes are a timesaving device agreed to when the outcome is assured, a deal has been struck or opponents are not agitated enough to force the Senate to go through the motions of a recorded vote they are certain to lose. Senators can be especially compliant as evening approaches on a Thursday, long affectionately known as getaway day on Capitol Hill.
Top Republicans recognize that Judge Gorsuch was not approved unanimously by Senate standards, though he certainly had bipartisan support. In an op-ed published on Monday in Politico, Senator Mitch McConnell, the Kentucky Republican and majority leader, artfully dodged saying Judge Gorsuch was confirmed unanimously, but instead noted that “no one cast a single negative vote against his nomination.” Senator John Cornyn of Texas, the No. 2 Senate Republican, said on the floor that the judge “was essentially voted unanimously,” with that “essentially” serving as a big caveat.
Still, backers of Judge Gorsuch have used the claim of a unanimous vote in 2006 as a weapon against the 12 Democrats who were serving then and remain in the Senate now, citing it as irrefutable evidence of hypocrisy if they ultimately oppose his nomination to the Supreme Court.
It is just one example of how the warring parties can be a little elastic with the truth when it comes to framing the coming Supreme Court fight to their best advantage. Neither side has clean hands.
Take Senate Democrats, who are eager to justify the demand that Judge Gorsuch attract at minimum the 60 votes needed to overcome a filibuster. The two top Democrats, Senators Chuck Schumer of New York and Richard J. Durbin of Illinois, have said Judge Gorsuch should have to meet the same “standard” of surpassing 60 votes that Justices Sonia Sotomayor and Elena Kagan did when President Barack Obama nominated them to the Supreme Court. While it’s true that both received more than 60 votes, neither was required to overcome such a “bar” — it was just where they ended up.
In fact, Republicans talked Harry Reid, then the majority leader, out of taking the official procedural steps to require 60 votes for the confirmation of Justice Kagan in 2010, saying they did not want to be accused later of mounting a filibuster against her. Mr. Schumer recently had to correct his assertion that Republicans had insisted on 60 votes for Mr. Obama’s two picks.
Then there is Mr. McConnell’s frequent call for Democrats to simply give Mr. Trump the same consideration that Republicans gave Presidents Obama and Bill Clinton with their Supreme Court nominees. That particular statement really grates on Democrats and their allies given that Mr. McConnell led Senate Republicans last year in denying Judge Merrick B. Garland so much as a hearing on his nomination.
But Mr. McConnell says he is referring to Mr. Obama’s two “first-term” picks, and not the Garland nomination of the second term, even though there is no prohibition on making a nomination late in a term.
Democrats offer their own ammunition when it comes to opposing Supreme Court picks who previously sailed through the Senate. Mr. Schumer’s office has pointed out that Mr. McConnell and Senator Charles E. Grassley, the Iowa Republican who leads the Judiciary Committee, did not object to the confirmation of Justice Sotomayor to a District Court seat in New York in August 1992 even though they opposed her 2009 nomination to the Supreme Court.
What Mr. Schumer’s office does not say is that both of those Republican senators voted against her confirmation to an appeals court in October 1998 when it was approved 68 to 28, an elevation that put her in line for her eventual Supreme Court seat.
Senators of both parties acknowledge that the scrutiny they — not to mention the public — give to Supreme Court nominees far surpasses their attention to a prospective Federal District Court judge or even a more powerful appeals court judge, providing some explanation for how they can oppose a nominee they previously allowed through.
It is also the case that there just aren’t many unanimous Senate confirmations since forcing a roll-call vote usually means at least one senator has a grievance to express.
But here is one dissent-free roll call that Mr. Trump might find relevant today: Judge James L. Robart, the federal judge in Washington State who initially blocked the new president’s immigration order, was approved 99 to 0 back in June 2004.
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