Following the Democratic Party takeover of the United States Senate in the aftermath of the November 2006 elections, and the withdrawal of fellow Ninth Circuit nominee William Gerry Myers III, Bush resubmitted Smith's name to the 110th Congress on January 16, 2007. The new nomination was to the seat left open by Idaho Judge Thomas G. Nelson, then on senior status, resulting in Smith's confirmation on February 15, 2007, by a vote of 94–0, over a year after his original nomination. He assumed senior status on August 11, 2018.