Michael Delaney’s controversial judicial nomination expected to be withdrawn, source says – The Boston Globe

WASHINGTON—Former New Hampshire Attorney General Michael Delaney’s nomination to serve on the First US Circuit Court of Appeals in Boston is expected to be withdrawn soon because he lacks the votes to advance out of the Senate Judiciary Committee, a source familiar with the confirmation process told The Globe.

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’s nomination.

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

A White House spokesman did not immediately respond to a request for comment. Neither did spokespeople for New Hampshire’s two Democratic senators, Jeanne Shaheen and Maggie Hassan. They put forth 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.

Delaney’s nomination has been criticized 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 a Prout and her family to settle the case.

Angered by the move, Chessy Prout decided to go public and has become an advocate for sexual assault survivors. She and her parents have been outspoken in opposing Delaney’s confirmation. Delaney has the strong backing of Shaheen and Hassan and several Democrats on the Judiciary committee said they supported him.

But 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.

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.

Jim Puzzanghera can be reached at jim.puzzanghera@globe.com. Follow him on Twitter: @JimPuzzanghera.