WASHINGTON ― For the first time since becoming president, one of Joe Biden’s judicial nominees may be in real trouble.
The clearest sign? It gets really awkward when you ask abortion rights groups and Democrats on the Senate Judiciary Committee about his nomination.
“Not decided yet,” Sen. Mazie Hirono (D-Hawaii) said late last week of Michael Delaney’s nomination.
Asked if she was leaning yes or no, Hirono interrupted, “I’m just going to say, I’m not decided yet.”
“Still working through what my vote will be,” said Sen. Richard Blumenthal (D-Conn.), who, like Hirono, looked down and was visibly eager to end the conversation.
He declined to add if he was leaning slightly one way or another.
“Right,” Blumenthal mumbled when asked if he was squarely undecided.
They’ve had time to review his record. Delaney, the former New Hampshire attorney general and Biden’s pick for a lifetime seat on the U.S. Court of Appeals for the First Circuit, had his nomination hearing more than a month ago, on Feb. 15. During that hearing, some senators had sharp questions about his legal work on a controversial school sexual assault case and abortion rights. A week later, Delaney followed up with written responses to members’ questions in a document that went on for 116 pages.
“I can guess which judge you want to ask about,” Sen. Jon Ossoff (D-Ga.) said as HuffPost approached with a question about an unnamed Biden’s judicial pick.
Ossoff correctly predicted HuffPost was about to ask about Delaney ― and proceeded to avoid all questions about whether he had any concerns with his nomination.
“I review all nominees’ records and qualifications thoroughly and with care before votes in the committee,” he said. “I will do that for each nominee throughout this Congress.”
He wouldn’t indicate if he was leaning toward yes or no.
“I’m afraid I’m going to have to restate what I said earlier, which is simply that for every nominee, I will thoroughly review their records and qualifications right up until the moment that the committee makes a determination,” Ossoff said. “And then I will vote.”
This is not the path that Biden’s judicial nominees usually go down. The Senate has confirmed 118 of his lifetime federal judges so far, which is a record-breaking number, and all have enjoyed strong Democratic support. They’ve been incredibly diverse, too.
But Delaney’s hearing was bumpy. He struggled to ease senators’ concerns about how he handled a 2015 sexual assault case at an elite New Hampshire boarding school.
Delaney, 53, represented St. Paul’s School in a lawsuit filed by the family of a student who another student had sexually assaulted. During the case, he filed a motion arguing that the plaintiff, who was 15 at the time, could only remain anonymous if she and her representatives 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 are now actively lobbying senators to reject his nomination.
Even the committee chairman, Sen. Dick Durbin (D-Ill.), had to admit after that case was rehashed in Delaney’s hearing, “It was a pretty rough hearing, no question.”
Delaney is also facing scrutiny for putting his name on legal briefs in 2005 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.
Delaney has said that he had very limited involvement in that case and only signed the briefs because it was expected of him as deputy attorney general. But in his written responses to senators, he noted that he didn’t sign every brief that came before him ― a detail that has left at least some Democrats on the committee uneasy about the possibility that he chose to sign the abortion briefs for personal reasons.
These details have raised red flags for women’s rights and sexual assault prevention groups. In a joint letter, 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. In addition, the National Alliance to End Sexual Violence told Judiciary Committee members it finds his behavior toward victims of sexual assault “problematic.”
One group, the National Council of Jewish Women, is flat-out opposing his nomination.
“It’s a big deal for our organization to oppose one of the president’s nominees, having supported more than 100 nominated by this administration,” said an NCJW spokesman. “Our concerns related to Mr. Delaney center around issues core to our organization ― ending gender-based violence, supporting survivors, advancing access to abortion, and creating a culture of healing and justice. For decades, the National Council of Jewish Women has worked for fair, independent, and qualified judges who bring a diversity of backgrounds and experiences to the bench, and we don’t believe Mr. Delaney fits this rubric for a lifetime position on our courts.”
What’s worse for Delaney’s nomination, national and state abortion rights groups won’t talk about him. Not only is this rare for Biden, who usually enjoys their support, but their unwillingness to get behind him comes at a time when protecting abortion rights is front of mind for Democrats after the Supreme Court gutted Roe v. Wade last year.
“We’re still evaluating,” said Ally Boguhn, communications director for NARAL Pro-Choice America.
“Planned Parenthood conducts a review of the records of federal judicial nominees,” said Gabby Richard, director of federal advocacy communications for Planned Parenthood Federation of America. “Our review of this nominee is ongoing.”
HuffPost reached out to the three major abortion rights groups that serve New Hampshire to see where they stand on Delaney. Nobody from the Reproductive Freedom Fund of New Hampshire, Planned Parenthood of Northern New England or Equality Health Center responded.
Delaney has some powerful supporters, though, and they’re sticking with him. They include the White House and Senate Majority Leader Chuck Schumer (D-N.Y.), who last week called him an “outstanding” choice.
“Michael Delaney has three decades of legal experience, including his service as Attorney General and Deputy Attorney General of New Hampshire, and he is well-qualified to serve in this important position,” said White House spokesman Andrew Bates. “The White House expects Senators to take his full record into account when evaluating his nomination.”
Bates noted that the first time the White House had heard of groups or senators wanting more information about Delaney’s background on abortion rights wasn’t from them directly but from an Associated Press reporter who reached out for a story about it. In other words, as far as the White House knew, people were comfortable with Delaney’s record after he provided the committee with “his 116 pages of thorough, under-oath answers,” said Bates.
Delaney’s backers also note his support from Susan Carbon, former President Barack Obama’s director of the Office on Violence Against Women at the Department of Justice. Carbon wrote to Judiciary Committee members that Delaney was “instrumental” in reforming New Hampshire’s “civil and criminal justice systems for victims of crime.”
Both of Delaney’s home-state Democratic senators, Jeanne Shaheen and Maggie Hassan, are also defending him. Both are strongly pro-choice.
“I think those women’s groups are misinformed,” Shaheen told HuffPost late last week when asked about some of the organizations raising concerns with Delaney’s nomination. “I think he will be an excellent judge.”
Asked if she had any concerns about him, she said, “I have none at all.”
Hassan isn’t wavering on Delaney, either.
“Senator Hassan continues to strongly support Mr. Delaney,” said Hassan spokeswoman Laura Epstein. “His strong, bipartisan support from a wide cross-section of leaders ― from the former Director of the Office on Violence Against Women under President Obama to dozens of plaintiffs attorneys representing survivors to NH Supreme Court justices appointed by members of both parties ― underscores his deep commitment to justice and why he will make for an excellent First Circuit Judge.”
But there are clearly tensions over Delaney in New Hampshire. During the course of reporting this story, HuffPost received emails and calls ― some unsolicited ― from people connected to the state’s legal community and reproductive rights groups voicing many of the same concerns about Delaney, suggesting there’s an active campaign operating under the surface to stop his nomination.
“I think those women’s groups are misinformed.”
At least one Democrat on the Judiciary Committee seems ready to back Delaney.
“He’s got the full and strong support of both the senators who know him very well and the attorney general who he served with,” said Sen. Sheldon Whitehouse (D-R.I.).
Whitehouse didn’t say her name, but the attorney general with whom Delaney served with for two years as deputy attorney general was Republican Kelly Ayotte, who is anti-choice and who led the legal effort to defend the state’s parental notification abortion law.
Ayotte, who is also a former U.S. senator, is not publicly supporting Delaney’s nomination. But during Delaney’s confirmation hearing in February, Sen. Lindsey Graham (R-S.C.) revealed that Ayotte gave him “a very glowing recommendation, which means a lot to me. I hope the committee will look at her evaluation of your professional capabilities.”
Nothing is happening with Delaney’s nomination anytime soon. Democrats have a one-seat majority in the Senate, and two Democratic senators ― Dianne Feinstein of California and John Fetterman of Pennsylvania ― have been out for weeks for medical reasons. That’s made it impossible to confirm any of Biden’s nominees who aren’t broadly supported.
Feinstein sits on the Judiciary Committee, too, which means Durbin is not likely to even schedule Delaney’s committee vote until she’s back. She’s out this week, and then the Senate goes into a two-week recess, meaning no action on Delaney for weeks, at least.
It would only take one Democrat voting no on the Judiciary Committee, along with every Republican, to tank Delaney’s nomination. That’s not necessarily where things are headed, but his confirmation looks pretty shaky for the moment. Sen. Cory Booker (D-N.J.), also on the panel, has said he has “preliminary concerns” about Delaney.
It’s up to Durbin to decide when to schedule Delaney’s committee vote. But even when Feinstein returns and puts the panel back at its full membership, that doesn’t mean Delaney will be ready to go. Feinstein is signaling she’s not on board with his nomination, either.
“She hasn’t made a decision yet on whether to support him,” said Feinstein spokesman Adam Russell.