The White House on Thursday withdrew the nomination of Michael Delaney to a U.S. circuit court seat because he doesn’t have the votes to be confirmed.
It’s the first time President Joe Biden has yanked one of his judicial picks.
The White House didn’t ask Delaney to pull out. Delaney himself asked Biden to withdraw his name after months of controversy around his nomination.
“At this time, I believe it is appropriate for me to withdraw my name from consideration for this position to advance the important work of the federal judiciary,” Delaney said in a Thursday letter to the president.
HuffPost obtained a copy of his letter:
Delaney’s nomination has been in trouble for months because of his past legal work on a controversial school sexual assault case and because of his views on abortion rights. He’s been repeatedly passed over for a vote in the Senate Judiciary Committee. He was listed on the agenda for a committee hearing on Thursday, but Chair Dick Durbin (D-Ill.) didn’t even mention him.
“He was not called today in committee because he lacks the votes,” a source familiar with Delaney’s nomination told HuffPost earlier Thursday. “And it is expected that his nomination will soon be withdrawn.”
Sens. Jeanne Shaheen and Maggie Hassan, two Democrats from New Hampshire, had recommended Delaney to the White House in the first place and have stood by his nomination amid the criticisms. In a Thursday joint statement, they continued to rave about Delaney’s credentials to be a judge.
“We know personally his strong character and commitment to justice, and he earned the support of New Hampshire and national leaders, from the former Director of the Office on Violence Against Women under President [Barack] Obama to New Hampshire Supreme Court justices appointed by members of both parties,” said the senators.
“We disagree with the criticism that has been leveled against him, and we are disappointed that it got in the way of confirming a highly qualified individual.”
White House spokesperson Andrew Bates also praised Delaney’s qualifications for a federal judgeship, but said the president is prepared to work with the New Hampshire senators to pick someone else for the court seat.
“President Biden put forward a deeply qualified nominee, with a long and distinguished career in public service,” said Bates. “The White House will consult with New Hampshire’s Senators to identify a new nominee.”
The whole situation has been incredibly awkward, considering Delaney was recommended to the White House by two Democratic senators and put forward by a Democratic president at a time when Democrats run the Senate. It’s put Democrats on the Judiciary Committee in the uncomfortable position of having to choose between rejecting a nominee with strong opposition from left-leaning groups or respecting their Democratic colleagues’ strong support of him.
In the end, the groups prevailed.
Women’s rights and sexual assault prevention groups have criticizes Delaney’s nomination for months, in large part because of his 2015 defense of a New Hampshire private school in a lawsuit filed by the family of a student whom another student had sexually assaulted. Delaney argued that the plaintiff, who was 15, could only remain anonymous if she agreed not to speak about the case publicly during litigation. Saying she felt Delaney’s motion was meant to intimidate her, that student, Chessy Prout, went on to reveal her identity and story. Prout and her parents have been actively lobbying senators to reject his nomination.
In a joint letter to committee members, the National Women’s Law Center, The Leadership Conference on Civil and Human Rights, and People for the American Way said they have “grave concerns” about him. The National Alliance to End Sexual Violence told committee members that his behavior toward victims of sexual assault was “problematic.”
Democrats were also uneasy about supporting Delaney after he put his name on legal briefs in 2005, something he didn’t have to do, that defended a state law requiring minors to tell their parents before they had an abortion. Delaney was deputy attorney general at the time, and he signed onto briefs sent to the Supreme Court defending the law on the grounds that it “does not present a substantial obstacle to any woman’s right to choose an abortion.” That law was ultimately repealed in 2007.
“Mr. Delaney was not ready for prime time.”
On Wednesday, eight more organizations announced their opposition to Delaney’s nomination. Groups including American Economic Liberties Project and the National Employment Law Project dinged Delaney for his “allegiance to corporate power.”
“Mr. Delaney’s record in private practice, as Deputy Attorney General for the State of New Hampshire, and as a volunteer member of the New England Legal Foundation’s (NELF) Board of Directors demonstrates a hostility to victims’ rights, reproductive rights, employee rights, and government regulation that is unsuitable for the lifetime appointment for which he is being considered,” said the groups.
Members of the Judiciary Committee must have gotten a heads-up about Delaney’s nomination going down. Earlier Thursday, two Republicans on the committee weirdly made a point to criticize him, even though they were never expected to vote for him anyway.
“As we talk about people who are unfit for public service, Michael Delaney is one of those individuals,” said Sen. Marsha Blackburn (R-Tenn.). “I appreciate he was removed from consideration today.”
Sen. Lindsey Graham (R-S.C.), who sometimes votes with Democrats to advance Biden’s court picks, said he was initially willing to support Delaney’s nomination until he learned of all the opposition to him from outside groups.
“I was very much inclined to support and through the process of the hearing ... you proved, I think, that Mr. Delaney was not ready for prime time,” Graham said, holding up a copy of the letter from the American Economic Liberties Project. “These groups don’t mean that much to me, but there’s eight national groups that don’t like Mr. Delaney.
“I’m ‘no’ on Delaney.”