Feinstein’s absence gives opponents of Delaney nomination more time to rally opposition

By Jim Puzzanghera
Boston Globe
7 min read

California Senator Dianne Feinstein’s absence from the narrowly divided chamber the past several weeks has stalled Democratic efforts to confirm more judges, including the controversial nomination of a New Hampshire lawyer for a seat on the US First Circuit Court of Appeals in Boston.

And that has given his opponents more time to rally opposition.

On Tuesday, Democrats tried unsuccessfully to temporarily replace the ailing Feinstein on the Senate Judiciary Committee to help advance more of President Biden’s judicial picks. The effort was blocked by Senate Republicans, with GOP leaderMitch McConnell citing the controversy around the appellate court nominee — former New Hampshire attorney general Michael Delaney — as one reason.

It’s the latest high-stakes battle over federal judges, who have become such pivotal arbiters in a deeply divided nation that filling court vacancies as quickly as possible has become a top priority for the party holding the White House. The Senate confirmed 97 of Biden’s judicial picks in his first two years in office, more than former president Donald Trump in the same period of his administration.

And a chance to bring that pace to a halt has become a rallying cry for Republicans.

“The far left wants the full Senate to move a senator off a committee so they can ram through a small sliver of their nominees who are especially extreme or unqualified,” McConnell, a Republican from Kentucky, said Tuesday in announcing his opposition to a temporary replacement for Feinstein.

Without mentioning him by name, McConnell charged that Delaney, “threatened an underage abuse victim while representing her prep school.”

The reference is to Delaney’s tenure as an attorney who represented New Hampshire’s elite St. Paul’s School in a civil suit stemming from a high-profile 2014 sexual assault of Chessy Prout, then 15, by an 18-year-old senior, Owen Labrie.

Delaney filed a controversial motion objecting to Prout’s request to remain anonymous if the case went to trial. Her family and advocates for sexual assault survivors said the move was intended to force a settlement by the family. Instead, an infuriated Prout decided to go public and has since become an advocate for sexual assault survivors.

Delaney told senators at his confirmation hearing that he was representing his client, St. Paul’s School, as an attorney at the McLane Middleton law firm and denied the motion was intended to intimidate Prout. But she and her family have been trying to convince senators to oppose Delaney’s confirmation. Shortly before his February confirmation hearing, Prout sent a letter to the Senate Judiciary Committee saying Delaney “is not ethically qualified to sit on the bench.”

“I know that judge appointments are totally political and it’s all about . . . how many judges the president can appoint,” she told the Globe last month. “I just wish that it didn’t have to be this way, which is pretty naïve and idealistic of me to say.”

The delay in a Judiciary Committee vote after a contentious hearing in February has given her father, Alex Prout, more time to lobby senators, speak out in the media, and solicit letters raising concerns about Delaney, including a recent one from the National Women’s Law Center, the Leadership Conference on Civil and Human rights, and People for the American Way.

“It gives more time for people to listen and become aware and realize why is this person still under consideration,” said Alex Prout.

But he acknowledged Feinstein’s absence has also given Delaney’s supporters, led by New Hampshire’s two Democratic senators, Jeanne Shaheen and Maggie Hassan, additional time to try to allay concerns raised by some Democrats on the Judiciary Committee.

“I continue to strongly support the nomination and the Judiciary Committee has some membership issues to work out,” Hassan said Tuesday. It’s up to the committee whether Feinstein should temporarily be replaced, Hassan said.

Senate majority leader Chuck Schumer attempted Tuesday to name Senator Ben Cardin, a Maryland Democrat, to temporarily replace Feinstein on the committee. But Republicans blocked the move.

“I hope she has a speedy recovery, but this is about trying to push four judges through,” said Senator Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee. He formally objected to Schumer’s request, which needed unanimous Senate support.

Democrats hold an 11-10 majority on the committee and a tie vote kills a nomination. All Republicans on the committee are expected to oppose Delaney as well as some other Biden judicial picks.

The confirmation problems for Democrats started just hours after Delaney’s Feb. 15 confirmation hearing when Senator John Fetterman, a Pennsylvania Democrat, checked himself into a hospital for treatment of depression. With Fetterman still out, Feinstein announced on March 2 that she had been hospitalized in late February for treatment of shingles.

Feinstein, 89, is the oldest sitting senator, and some colleagues have quietly raised questions for more than a year about whether she’s mentally fit to serve. She announced on Feb. 14 that she would not run for reelection in 2024, but intended to serve the rest of her term.

Fetterman returned to the Senate this week, meaning that onlyFeinstein’s absence is preventing Democrats from advancing judicial nominees on a party line vote. Acknowledging that problem, Feinstein issued a statement last week saying she intends to return to the Senate as soon as she’s medically able. In the meantime, she asked Schumer “to allow another Democratic senator to temporarily serve until I’m able to resume my committee work.”

Some Republicans, including Senator Susan Collins of Maine, accused Democrats of trying to force Feinstein to retire. Feinstein bowed to pressure to step aside as the top Democrat on Judiciary in November 2020, but remained on the panel.

“I think she’s been an extraordinary senator. She’s a friend of mine,” Collins said this week. “During the past two years, there has been a concerted campaign to force her off of the Judiciary Committee. And I think that’s wrong, and I won’t be a part of that.”

The White House and Democrats hoped to increase the pace of judicial confirmations after they expanded their razor-thin Senate majority by a seat in the 2022 midterm elections, particularly because most legislative initiatives can be blocked by the new Republican House majority.

“Trump famously bragged about how many nominees the previous administration left for him,” said Jim Manley, a former top Senate Democratic leadership aide. “I hope we don’t make that mistake again. Given the lack of legislation moving, that’s all we’ve got.”

Delaney was among a batch of nominees Biden unveiled in January with hopes for quick confirmations. But absences on the Judiciary committee, combined with the efforts of Chessy Prout and her parents in opposing his nomination, has put his confirmation and others in limbo.

Senator Mazie Hirono, a Hawaii Democrat on the committee, indicated she would support Delaney after his hearing but said on Tuesday that she hasn’t made up her mind. Another Democrat on the committee, Richard Blumenthal of Connecticut, said he continues to have concerns about the nomination and remains undecided. Feinstein submitted multiple written questions to Delaney after his hearing about the St. Paul’s case, but a spokesperson on Tuesday would not say if she supported his confirmation.

While Delaney’s nomination awaits a vote, Alex Prout said he’s working on increasing opposition.

“The coalition is going to do nothing but broaden out, so time is our friend on this,” he said.