Rose, who on September 10 became one of the last judges confirmed before the election, said another federal judge summed up the process for her this way: It's like labor, he said — as soon as it's over you forgot it happened. "I said, 'How do you know? You're a boy,' " Rose said.
Up in Michigan, Drain had the added stress of being labeled a controversial nominee because of some of his writings about the death penalty and the Second Amendment. He was a state judge before his confirmation to the federal bench, and described being "at the mercy of the Senate" as a foreign feeling. "As a judge, you usually feel control in your courtroom," he said.
The Judiciary Committee approved Drain in March and his name made it to the top of the list for a confirmation vote from the full Senate. He began to despair, he said, because the Senate could not even seem to confirm noncontroversial nominees. "When they got to me, they started skipping over me. That's the part that really made me nervous," he said. "When it happened once, it was like, maybe that's not a big thing." Then they did it three times and four times. "I kept telling myself, 'You've got a good job.' "
Drain went back and watched videos of other hearings and reviewed other nominees' questionnaires. "People start coming up to you and asking, 'How's it going? Have you got confirmed yet?' It's like, 'I don't know. I'm waiting.' " he said.
The political nature of the process was evident during Drain's hearing before the Judiciary Committee, he said. "You could see the partisan divide, for example in the hearing and the vote. It almost seemed to me like the senators were…" At that point, Drain abandoned the thought.
In Utah, David Nuffer was still waiting for his confirmation vote five months after he was reported out of the Judiciary Committee in October 2011.
Nuffer, a federal magistrate judge, was trying to plan a smooth transition. He did not want to proceed halfway into motions that he would not able to resolve. He wanted to make staff arrangements and know when he could move into his new chambers. During an interview, he described the stress of uncertainty and of "wondering if it matters to anybody."
"Honestly, these are not big deals for the Senate, but it's really big for the public, and for attorneys and caseloads in the court," Nuffer said. "There were times I would be very frustrated. I'm sure there are some people who really wonder why they got into this."
In the middle of Nuffer's wait, Obama made his recess appointments and the consent votes came to an abrupt halt. "I watched more C-SPAN than I thought I would ever watch in my life," he said.
He was undergoing information-technology training for judges in Texas when he got a call from Utah's two senators letting him know that his confirmation vote would happen. One of them was Republican Mike Lee, who at the time was voting against every nominee to protest the recess appointments. Nuffer recalled Lee telling him: "I think you're going to be a great judge, but I'm going to vote against you."
FINANCIAL CHALLENGES
Nuffer said that nominees like himself, who have a steady government paycheck during the process, have it easy compared with those in private practice, who must struggle with dwindling business and winding down a practice. "Do you shut down your cases or keep taking cases? How can you live in that kind of uncertainty?" he said.
The financial challenges confronting private-attorney nominees are not something many want to discuss. U.S. District Judge Robert Shelby of Utah was an attorney in Salt Lake City who waited almost a year between his nomination and confirmation in September; he declined to comment.
So did soon-to-be U.S. District Judge Michael Shea, an attorney at Day Pitney in Connecticut who waited more than seven months between his committee approval and his December 5 confirmation vote.
Miranda Du, confirmed in March as a district judge in Nevada after 17 years in private practice, said her main concern was: "What do I need to do in the best interests of my clients and still be fair to my partners?"
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