Biden Nominee Faces Rare Dem Scrutiny 03/20 06:09
WASHINGTON (AP) -- One of President Joe Biden's nominees to a federal
appeals court has generated rare concern from some Democrats and outside groups
over his signature on a legal brief defending a parental notification law in
New Hampshire, injecting the issue of abortion into his confirmation fight from
an unexpected flank.
Michael Delaney, nominated for the 1st U.S. Circuit Court of Appeals, based
in Boston, said in written testimony to senators that he did not write the 2005
brief and otherwise had "extremely limited involvement" in the case that was
brought while he was deputy attorney general in New Hampshire.
But the signing of the brief, along with scrutiny of his representation of
St. Paul's School, a private boarding school in New Hampshire that was sued in
connection with a sexual assault, is complicating a confirmation fight in which
the White House has little room for error.
The close attention on an abortion case also shows how stakes are
ever-higher in a post-Roe v. Wade world. Access to abortion could hinge on
lower-level judges now that the U.S. Supreme Court has overturned the
constitutional right to the procedure and advocates on both sides want
near-certainty as they assess nominees. The issue helped derail one proposed
Biden pick last summer when the White House decided not to nominate an
anti-abortion lawyer in Kentucky following an outcry from Democrats.
Delaney's case will test how far Biden will push Democrats to support his
nominees to the federal bench even after the White House set records in the
number of appointments in his first two years. It will also test the power of
personal persuasion in the clubby Senate, whose members can often be influenced
by fellow members whose counsel they trust.
In this case, both New Hampshire Democratic senators, Jeanne Shaheen and
Maggie Hassan, strongly back Delaney and are deeply respected by other
senators. Both are also fierce supporters of abortion rights.
At issue is a New Hampshire law, passed in 2003 but repealed in 2007, that
required minors to tell their parents before they obtained an abortion. As the
state's deputy attorney general, Delaney was among those who signed a brief
submitted to the U.S. Supreme Court that defended the law because it "does not
present a substantial obstacle to any woman's right to choose an abortion."
The law, according to the brief filed in the case, Ayotte vs. Planned
Parenthood of Northern New England, "promotes compelling state interests, not
the least of which is protecting the health of the pregnant minor by providing
an opportunity for parents to supply essential medical history information to
Delaney's involvement is detailed in response to written questions from Sen.
Dianne Feinstein, D-Calif., that he submitted after his confirmation hearing
last month. But his signature on the brief has caused consternation for Sen.
Richard Blumenthal, D-Conn., a member of the Senate Judiciary Committee and a
strong supporter of abortion rights.
"For me personally, reproductive rights is a fundamental, core issue,"
Blumenthal told The Associated Press. "And I think I'd want to know why he put
his name on the brief and what it reflects in his personal view."
Besides Blumenthal, two other Democratic members of the closely divided
Senate, Cory Booker of New Jersey and Mazie Hirono of Hawaii, have also
expressed general reservations about his nomination, particularly as it relates
to the St. Paul's case. And at least one other Democrat on the Senate Judiciary
Committee is concerned about Delaney's involvement in the Planned Parenthood
case, according to a person familiar with the senator's thinking who spoke to
the AP on the condition of anonymity to discuss ongoing deliberations over the
One factor being weighed is how much Delaney's involvement in the brief was
just a matter of course in his job. Delaney told senators that he was not
involved in the decision to appeal the case to the Supreme Court, nor did he
represent New Hampshire during oral arguments there. He was not directly
involved in formulating the brief's arguments, he said, and while he read the
brief before it was submitted, he said he does not recall whether he offered
In a statement to the AP, former New Hampshire Gov. John Lynch, a Democrat,
said: "Mike Delaney strongly supports women's reproductive freedom."
Lynch said he disagreed with then-Attorney General Kelly Ayotte on the
Planned Parenthood case. "When Mike became my legal counsel, he worked with me
to successfully repeal the law at issue in the case," he said.
Still, in private conversations, groups that support abortion access have
similarly raised questions about why Delaney signed a brief that defended
abortion restrictions. They have been dissatisfied with the responses.
In a previously unreported letter, the National Council of Jewish Women said
it would oppose the confirmation of Delaney, the first nominee from the Biden
administration that it has rejected. The group pointed to his representation of
St. Paul's as well as to his signature on the Planned Parenthood brief.
Saying federal judges should have a record that "evidences fairness,
independence, fidelity to constitutional values, and respect for the
individuals who appear before the court seeking justice," the group wrote in
the letter that "unfortunately, after reviewing the record, we do not think
that Mr. Delaney possesses those important qualifications."
The White House continues to support Delaney's nomination. Privately, White
House officials are concerned that focusing on one motion or case could set a
precedent for Republican opponents of Biden's picks to undermine other
candidates for the bench, according to a person with knowledge of the internal
deliberations who insisted on anonymity to discuss them.
"This was the first we had heard that anyone was interested in more
information beyond his 116 pages of thorough, under-oath answers," White House
spokesman Andrew Bates said in a statement. "Michael Delaney has three decades
of legal experience, including his service as Attorney General and Deputy
Attorney General of New Hampshire, and he is well-qualified to serve in this
important position. The White House expects Senators to take his full record
into account when evaluating his nomination."
Planned Parenthood Federation of America, a potent political force in
Democratic politics, was noncommittal on Delaney's nomination, saying in a
statement: "Planned Parenthood conducts a review of the records of federal
judicial nominees. Our review of this nominee and his involvement in the Ayotte
case is ongoing."
Biden nominated Delaney for the appeals court in January, almost a year
after Shaheen's office first contacted him to discuss filling the vacancy.
Since then, Shaheen and Hassan have been Delaney's biggest patrons, despite a
rocky confirmation hearing that even Democrats say did not go well for him
after he faced repeated questions from Republican senators who attacked his
handling of the St. Paul's case.
Shaheen and Hassan have worked privately to lobby colleagues. In a
closed-door lunch with other Democratic senators earlier this month, Shaheen
and Hassan made their case while offering what attendees described as more
context and history on his involvement in the St. Paul's case. During that
meeting, the two senators also distributed copies of an endorsement letter from
Susan Carbon, a longtime state judge in New Hampshire who served as director of
the Office on Violence Against Women during the Obama administration.
"He has the experience, the intellect, the character and commitment to
justice, and a broad, broad amount of support, including from advocates for
victims," Hassan said. Delaney has been rated well qualified by the American
Bar Association, and Judiciary Committee Chairman Dick Durbin, D-Ill., says he
will support him.
Still, concerns persist among a handful of Democrats.
Booker said he had some "preliminary concerns" about how Delaney handled the
sexual assault case. Hirono said she was prepared to support him after his
confirmation hearing but said she was now reviewing his written testimony and
added: "So we shall see."
Blumenthal added: "Having concerns doesn't necessarily mean that any of us
will oppose his nomination." Still, most Democrats on the committee said they
were undecided on whether to confirm him.