Michael Delaney withdraws as US Circuit judge nominee amid controversy over his role as a lawyer in a notorious N.H. sexual assault case

By Jim Puzzanghera
Boston Globe
6 min read

Former New Hampshire Attorney General Michael Delaney on Thursday withdrew as a nominee to serve on the First US Circuit Court of Appeals in Boston amid controversy over his role as a lawyer in a notorious sexual assault case.

The 53-year-old Democrat from Lynn, Mass., sent a letter to President Biden on Thursday afternoon after his nomination again failed to receive a vote in the Senate Judiciary Committee because of lack of enough Democratic support.

“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 wrote.

He is the first of Biden’s judicial nominees to withdraw. White House spokesman Andrew Bates said the president would work with New Hampshire’s Democratic senators, Jeanne Shaheen and Maggie Hassan, “to identify a new nominee.”

“President Biden put forward a deeply qualified nominee, with a long and distinguished career in public service,” Bates said. “The president looks forward to working with Democrats and Republicans to build on his historic record of nominating and confirming men and women who are dedicated to the rule of law and who continue to break barriers by representing the diversity of our country.”

Delaney’s nomination has been languishing for months, and a committee vote on it was delayed again on Thursday, despite the panel being at full strength with the return last week of Senator Dianne Feinstein. The nomination had been stalled at least in part because of Republican opposition while Feinstein, 89, a California Democrat, was out since mid-February with a bad case of shingles.

Even after Feinstein’s return, the committee, which has an 11-10 Democratic majority, did not immediately vote on Delaney because of concerns by some Democrats. The committee advanced three other Biden judicial nominees that Republicans had opposed last week. Three Democrats on the committee — Richard Blumenthal of Connecticut, Cory Booker of New Jersey, and Mazie Hirono of Hawaii — have indicated publicly they had concerns about Delaney.

Asked after Thursday’s meeting if Delaney’s nomination would ever get a vote, Senate Judiciary Chair Dick Durbinindicated there were still problems, telling reporters, “It’s not my decision alone.”

Shaheen and Hassan said in a statement that they had strongly supported Delaney. They sent his name for the nomination to Biden and heavily lobbied for his confirmation to the seat on the court that traditionally goes to a New Hampshire resident.

“We strongly supported Michael Delaney’s nomination to serve as a First Circuit judge,” the senators said in a written statement Thursday, adding that they “know personally his strong character and commitment to justice.” “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.”

Delaney’s nomination has been criticized largely because of his role representing St. Paul’s School in a civil suit resulting from the 2014 sexual assault of Chessy Prout, then 15, by an 18-year-old senior, Owen Labrie, at the elite Concord, N.H., boarding school. Delaney, who was working for a private law firm, filed a motion opposing Prout’s request for anonymity if the case went to trial. The controversial tactic that was publicly criticized at the time as designed to force Prout and her family to settle the case.

Angered by the move, Prout decided to go public and has become an advocate for sexual assault survivors, writing a book about her experience and founding a nonprofit with her parents called “I Have the Right To” that works “to create an ecosystem of respect and support for students and survivors of sexual assault.”

She and her parents, Alex and Susan Prout, have been outspoken in opposing Delaney’s confirmation and personally lobbied senators. Her parents attended Thursday’s Judiciary Committee hearing. Susan Prout held a copy of her daughter’s book.

“The scourge of sexual violence is one of the biggest issues in our culture. Delaney represents the systems and structures that allow rape culture to flourish in our society,” Alex Prout said when asked about Delaney’s possible withdrawal earlier Thursday.“ We are encouraged that the voices of survivors have been taken into account in this nomination, but now we need bipartisan action to address the systems, the institutions, the structures that silence and shame survivors. The time for action is now.”

SeveralDemocrats on the Judiciary Committeehadsaid they intended to vote forDelaney.

Republicans on the committee were unified in opposition, citing Delaney’s actions in the St. Paul’s case. And Senate Minority Leader Mitch McConnell, a Kentucky Republican, has spoken out against Delaney’s confirmation on the Senate floor.

After the committee delayed a vote on the nomination Thursday, Senator Marsha Blackburn, a Tennessee Republican, thanked Durbin for the move and called Delaney “unfit for public service.”

“As we reviewed his record when he came before this committee we brought forward, and he did not deny, his use of hardball tactics against a 15-year-old girl. A 15 year-old-girl,” Blackburn said. At his February confirmation hearing, Delaney said he was simply representing St. Paul’s School and denied the motion was intended to intimidate Prout.

As his nomination was delayed in part by Feinstein’s absence, opposition grew and his critics seized the opportunity to lobby against him further.

Delaney also has been criticized by some Democrats and outside groups for signing a 2005 Supreme Court legal brief while serving as New Hampshire’s deputy attorney general that defended a state law that required minors to tell their parents before having an abortion.

And some progressives have raised concerns about his recent service on the board of the New England Legal Foundation. The free market advocacy group has filed legal briefs opposing Biden administration positions on climate change, consumer protection, and labor rights.

On Wednesday, eight progressive advocacy organizations led by the American Economic Liberties Project, sent a letter to the Judiciary Committee urging senators to reject Delaney’s nomination.

“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,” the groups wrote.