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Liberal groups raise ‘grave concerns’ about Biden judicial pick

March 10, 2023

By Marianne Levine
3.5 min read

Several liberal advocacy organizations are expressing serious doubts about President Joe Biden’s nominee to the First Circuit Court of Appeals, highlighting his handling of a school sexual assault case.

In a memo sent to Democrats on the Judiciary Committee and obtained by POLITICO, the National Women’s Law Center, the Leadership Conference on Civil and Human Rights, and People for the American Way expressed “grave concerns” about Michael Delaney’s nomination.

“A look at Delaney’s legal career includes an egregious lack of respect for the privacy, safety, and rights of survivors and an apparent endorsement of the practices schools so often use to intimidate survivors into silence,” the groups wrote. “We urge senators to further examine Delaney’s record and background and ensure they are not complicit in pushing survivors of sexual misconduct further into the shadows.”

The controversy surrounding Delaney’s nomination is unusual for a Biden judicial pick, compounded with further concerns voiced by some Democratic members on the panel. The New Hampshire judicial nominee is under particular scrutiny for his representation of St. Paul’s School in a school sexual assault case. During that case, Delaney filed a motion that would have allowed the plaintiff, who was a minor, to remain anonymous only if she and her representatives agreed not to speak about the case publicly during the litigation.

The victim in the case, Chessy Prout, went public and a settlement was eventually reached in 2018. Prout recently wrote an op-ed in the Boston Globe encouraging the White House to withdraw Delaney’s nomination. During his confirmation hearing, Delaney said he was an “advocate” for St. Paul’s, and that the school “felt that the request to restrict [Prout’s] lawyers from trying the case in the media was compatible with her desire to proceed with privacy and anonymity.”

Delaney, a former New Hampshire attorney general, has strong support from his home state Democratic senators, Jeanne Shaheen and Maggie Hassan, as well as the White House. Hassan and Shaheen have made the case for his confirmation broadly to their colleagues, including at the caucus lunch this past week.

Delaney’s allies also highlight support from Susan Carbon, former President Barack Obama’s director of the office on violence against women at the Department of Justice, who wrote that he was “instrumental” in making changes designed “to improve the civil and criminal justice systems for victims of crime” in New Hampshire. Other endorsements include four former New Hampshire Supreme Court justices, appointed by both parties, and 29 past presidents of the New Hampshire Bar Association.

“The strong support for Michael Delaney from legal experts, survivor advocates and lawmakers spanning the political spectrum speaks to his qualifications, ethics and commitment to justice throughout his nearly thirty-year career,” said Sarah Weinstein, a Shaheen spokesperson. “Senator Shaheen believes that both his record and strong backing from individuals in the advocacy and legal sectors underscore his qualifications.”

Laura Epstein, a Hassan spokesperson added that “Delaney’s strong, bipartisan support from a wide cross-section of leaders … underscores his deep commitment to justice and why he will make for an excellent First Circuit Judge.”

White House spokesperson Seth Schuster said 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.”

The Senate Judiciary Committee is slated to take up Delaney’s nomination next week, but that is likely to change depending on attendance. Sen. Dianne Feinstein (D-Calif.) has been out of the Senate recovering from shingles. Senate Republicans, meanwhile, have made the school sexual assault case a key focus and are not expected to support his nomination. While no Democrats have come out publicly against Delaney, it’s not clear he has the votes to get through committee.

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