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Nominees are living on hold
The National Law Journal
This is what happens when you're a judicial nominee during this session of Congress, widely considered one of the most partisan ever: Rumors about your impending confirmation vote don't come true. Co-workers and friends keep asking why the holdup. You have no good answers.
You remind yourself that, hey, your existing job isn't too bad after all. You start watching C-SPAN. A lot. You wonder when to sell your home, and where to enroll your children in school. Despair sets in.
Mostly, you wait.
"It's just really a little nerve-wracking, waiting and hoping and wishing your name would come up," said U.S. District Judge Gershwin Drain in Michigan, who was nominated in November 2011 and who waited more than four months between his approval by the Senate Judiciary Committee and a confirmation vote by the full Senate on August 2. "You are at the mercy of the Senate."
During the past two years, the Senate's mercy has hardly been tender. Nomination-related partisanship for the first time reached even noncontroversial district court nominees. Especially after January, when Republicans began to retaliate against judicial nominees in response to recess appointments that President Obama made to two federal agencies.
Stephanie Rose, then U.S. attorney for the Northern District of Iowa, won approval from the Judiciary Committee in April. Four months later, she was still waiting to hear whether the full Senate would confirm her for the Southern District of Iowa. The new job would mean moving to Des Moines, more than 100 miles away. The school year approached, but Rose and her husband had no idea where to enroll their two children, 10 and 13. They made repairs to their home and studied the housing market, but had no idea whether to put it up for sale.
"Do you sell a house in today's market if you don't have the certainty there's going to be a job for you? There are all those family issues that make the wait more difficult," Rose said. "To be so close to gaining that, and not know if it's going to happen, is hard."
'SCARY NEW TERMS'
Rose learned what she called "scary new terms" like cloture, whereby Democrats would try to force a confirmation vote and sometimes fail, even with strong support from the nominee's home-state senators. "At any point, Congress could devolve into such a contentious thing that there would be no confirmations," Rose said.
There was a support group of sorts, comprising fellow nominees, Rose said. The White House kept them updated regarding any movement in Congress and who was moving to the top of the list. Still, she had no idea about when or if she should start getting ready to move.
For months, while Rose and other nominees waited, Senate Democrats pointed out that Obama's district court nominees had been forced to wait four times longer than had George W. Bush's. Republicans said they had approved a sufficient number of judges; complained about those recess appointments; or cited the impending presidential election.
Confirmations trickled out of the Senate in that fashion for most of 2012. Republicans stopped all circuit court confirmations in June and allowed only about one district court confirmation per week until they stopped those for good in September.
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."
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?"
She had a model to follow at her firm, McDonald Carano Wilson in Reno, from which U.S. District Judge Larry Hicks had made the same transition. That didn't make the process easy. "I still had a lot of work coming in," Du said. "I don't know what would have happened if the process had been longer."
Du had to introduce institutional clients to other partners. She pretty much stopped taking new work, especially in federal court. She was able to continue working on state court litigation, but had to plan for someone else to handle any trials.
In one case, "I was supposed to be taking the lead, but I took a secondary role," Du said. "I was right I was confirmed before the trial was scheduled."
Du considers herself fortunate because her voyage from nomination to confirmation was shorter than that of many of her colleagues. Additionally, she was backed by Senate Majority Leader Harry Reid, who represents Nevada.
"I knew he was working on it," Du said. "And he would call and say, 'Hang in there, I don't want you to be discouraged.' "
Easier said than done. "I think it's still a tough process, because, emotionally, you're in a situation where you don't have any control," Du said. "Especially for lawyers, that is difficult."
Todd Ruger can be contacted at email@example.com.