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Biden judicial appointment hangs in the wind as senators mull action in past case

March 3, 2023

By Jeremy Diamond and Lauren Fox
10 min read

Two weeks after President Joe Biden’s nominee for a prized federal judgeship appeared before the Senate Judiciary Committee, a majority of Democrats on that panel have yet to commit to supporting his nomination.

The White House is standing by its nominee, raising the possibility that Biden will face his first public judicial setback at the hands of his own party.

Former New Hampshire Attorney General Michael Delaney, Biden’s nominee for the 1st US Circuit Court of Appeals, is facing serious questions about his handling of a 2016 civil suit related to the sexual assault of a minor.

Representing the boarding school where the assault took place, Delaney argued that the victim should only remain anonymous if certain conditions were met. In the event the case went to trial, Delaney argued she should be stripped of her anonymity entirely, which the victim’s family believes was intended to have a chilling effect.

Delaney has defended his approach to the case, arguing it was in line with how another court handled a similar dispute and promising that, if confirmed, he would follow newer precedent from the 1st Circuit concerning anonymity in sexual assault cases. After Delaney’s filing, the victim, Chessy Prout, decided to identify herself publicly; her family withdrew their motion for anonymity and the case was ultimately settled with a confidential agreement.

Prout said she was inspired to seek justice at the time by the “It’s On Us” sexual assault prevention campaign Biden had led as vice president.

“And now, to have the very person who inspired me to seek justice nominate the attorney who tried to tamper and take away my right to anonymity in my search for justice is just astounding,” Prout told CNN in an interview. “And really disappointing.”

The current uncertainty around Delaney’s nomination comes after months of efforts by Prout and her family to raise concerns about his selection – before the choice was even publicly announced – with the Biden administration and New Hampshire’s senators, who submitted Delaney’s name to the White House to fill the judicial vacancy in their state.

After catching wind last April that Delaney was slated to be nominated for the position, the Prouts sought meetings with the staff of Sens. Jeanne Shaheen and Maggie Hassan, the Democratic senators from New Hampshire, and reached out to the Justice Department’s Office of Legal Policy, which is responsible for vetting judicial nominees and submitting a report to the White House.

Following the outreach, the Prouts said a DOJ official contacted them last April and interviewed them all extensively about Delaney’s involvement in the 2016 lawsuit. The parents also met via Zoom in April with Shaheen’s and Hassan’s staff to express their concerns, hoping the senators would withdraw their support and seek a different nominee.

“We wanted to give them the opportunity to withdraw this nomination,” Alexander Prout, Chessy’s father, said. “We felt strongly that if they just understood what Delaney had done, that they would very quickly pull back this nomination.”

Instead, Delaney’s nomination sat on ice for months, until he was officially nominated in January.

Now, the Prouts have turned their focus to other Senate Democrats and have spoken with the offices of nearly every Democrat on the Judiciary Committee, hoping to convince at least one to oppose the nomination.

“He is being looked at very closely now,” Alexander Prout told CNN in an interview. “We have seen a number of the Senate staffers say, ‘We are taking this very seriously. This is something that I will personally speak to the senator about.’ We take that as very encouraging language.”

While a majority of Democrats on the Judiciary Committee – including its chairman – are noncommittal about supporting Delaney’s nomination, none has expressed outright opposition.

Sen. Chris Coons, D-Delaware, told CNN he intends to vote for Delaney. And Sen. Mazie Hirono, D-Hawaii, said she was “prepared to vote for him” but is in the process of reviewing Delaney’s written responses to senators’ follow-up questions.

Delaney still has the firm backing of Hassan and Shaheen, who, as home state senators, are given significant sway by the White House over judicial nominations in their state. Both have been working behind the scenes to win over their Democratic colleagues.

Shaheen, in particular, has mounted a forceful campaign to ensure Delaney makes it out of committee and is ultimately confirmed, two sources familiar with the process said, meeting with her colleagues, reminding them of his broader record as New Hampshire attorney general and encouraging colleagues to look the totality of his career, not just his actions in one civil lawsuit.

Democrats reviewing Delaney’s record

Delaney struggled to assuage concerns and parry criticism from Republicans about his handling of the case during his hearing before the Senate panel last month, leaving even the committee’s chairman, Democratic Sen. Dick Durbin, to call it “a pretty rough hearing” and to vow to “take a closer look at his record.”

Sen. Cory Booker, D-New Jersey, said he is “having discussions” about the nomination “with a lot of different people” but declined to outline any specific concerns.

“I don’t want to get into it yet. I want to make my mind up, and then I am happy to discuss it,” Booker said.

Sen. Sheldon Whitehouse, a Democrat from Rhode Island who is an alumnus of the boarding school in the case, said he had “not caught up on the legendary Mr. Delaney.”

“I don’t want to offer opinions until I have looked into it,” Whitehouse said. “I missed the hearing and am not up to speed.”

Another one of the senators still undecided is Democratic Sen. Richard Blumenthal of Connecticut, who told CNN in an interview he was still reading up on dozens of responses from Delaney following the hearing.

“We need to be very frank and say we want satisfactory answers to these questions about some of what he did while he was in private practice,” Blumenthal said.

For now, senators mostly say they are digging into hundreds of questions for the record that Delaney returned to them on Monday.

“I review all nominees on the merits. I look closely at their qualifications and their record . I consider them all carefully and consider the interests of the state of Georgia,” Democratic Sen. Jon Ossoff told CNN.

Pressed on if he had concerns over the handling of the St. Paul’s case specifically, he said, “I will look carefully at every aspect of every nominee’s record.”

California Democratic Sen. Alex Padilla and Vermont Sen. Peter Welch said they were still reviewing Delaney’s nomination.

Asked several times about Delaney’s record over the course of a few days, Sen. Amy Klobuchar, a Minnesota Democrat, said she was reviewing his responses to questions for the record.

Earlier this month, just two Democrats questioned Delaney in the hearing. While several of the Democrats CNN spoke with said they had scheduling conflicts, Republicans senators seized on the lack of attendance as a sign of trouble for Delaney.

“They’re avoiding. They didn’t want to be there,” said Missouri Sen. Josh Hawley, a Republican member on the committee who opposes Delaney’s nomination and hopes he will be pulled from consideration.

“I know what the facts are, and I heard his responses to them, and I talked to her parents, and her by the way, and they are not conservatives at all,” Hawley said. “This isn’t a partisan thing.”

The White House declined to answer a series of questions about Delaney’s nomination and the process of vetting him, pointing instead to a previous statement of support following Delaney’s February hearing that called attention to his “strong track record of upholding the rule of law, including taking action to protect vulnerable victims.”

“The White House has the utmost respect for sexual assault and domestic violence survivors, and expects senators to take Mr. Delaney’s full record into account when considering his nomination – as the White House did before nominating Mr. Delaney to the First Circuit,” White House spokesperson Seth Schuster said in the statement.

Questions over handling of 2016 case

Delaney’s nomination controversy stems from a 2016 motion he filed in federal court on behalf of St. Paul’s School, in which Delaney urged the court to only grant Chessy Prout’s request for anonymity on the condition that her attorneys “refrain from making any further public statements about” the case “until the litigation is complete.”

He also argued that Prout should not be allowed to proceed anonymously during an eventual trial, arguing that “only in ‘exceptional’ cases may a court grant a party anonymity in an otherwise public proceeding.”

While explaining during last month’s committee hearing the legal position he took on behalf of the school, Delaney stressed he was acting as an advocate and his considerations as a judge would be different. He also pointed to his experience as a prosecutor working with victims and said it had taught him “how important the interaction between the judge on the bench and the victim of the crimes is.”

Stacy Malone, executive director of the Victim Rights Law Center, said motions like the one Delaney filed can have a chilling effect on survivors of sexual assault. She said the use of pseudonyms in civil cases related to sexual assault is so routine that defendants rarely oppose them.

“When you look at how important anonymity is for rape and sexual assault survivors … their privacy is so critical, and if we don’t allow them to do these cases anonymously, then we are going to decrease the chances of holding perpetrators and institutions accountable when it comes to instances of sexual violence,” Malone said.

Chessy Prout told CNN she interpreted Delaney’s motion at the time as “an attempt to silence me and intimidate me into not pursuing justice.” It came as she and her family were already facing death and sexual violence threats after her name leaked out onto the darker corners of the internet.

“It read to me like, if you want to proceed, if you want to fight this and take it to the furthest legal extent that I could, then I would have to do it publicly,” she said.

In written responses to follow-up questions from senators, Delaney acknowledged that “there is no doubt that civil litigation can have a chilling effect on women who come forward to risk privacy and advance civil claims following a sexual assault” but argued that his motion “did not seek to compel the Prout family to give up anonymity at pretrial stages of the case.” Instead, he said he was trying to ensure a potential jury pool wouldn’t be influenced by public comments by the Prout’s attorneys.

As for his motion to strip Prout of anonymity during an eventual trial, Delaney said “that request was consistent with how other trial courts had handled the use of pseudonyms at public trials.”

Malone rejected the distinction, arguing that Delaney was “weaponizing (Prout’s) own privacy against her.”

“It’s a tactic,” Malone said. “This is definitely an attempt to silence her and an attempt to intimidate her.”

Delaney maintains his role in the civil suit would not affect his handling of cases as a federal judge, noting repeatedly that his “role would be very different.”

“I do not believe my role as an advocate for the school in this case would compromise my ability to be a fair and impartial judge,” Delaney told senators.

CNN’s Tierney Sneed and Nicky Robertson contributed to this report.

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