WASHINGTON (AP) — In a rare judicial defeat for President Joe Biden, the White House is expected to soon withdraw the nomination of Michael Delaney for the Boston-based 1st U.S. Circuit Court of Appeals, according to a person familiar with his confirmation process.
Delaney’s nomination lacks the needed votes in the Senate Judiciary Committee, said the person, who spoke on condition of anonymity because the decision had not yet been made public. The White House declined to comment.
Democrats’ inability to secure the necessary votes both in the committee and on the floor is partly due to concerns over a legal brief on abortion that Delaney signed as deputy attorney general in New Hampshire. The brief defended a parental notification law in the state.
Delaney also faced 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.
Delaney said in written testimony to senators that he did not write the 2005 abortion brief and otherwise had “extremely limited involvement” in the case that was brought while he was deputy attorney general in New Hampshire. But he was never able to gain the support of enough Democrats to win approval in the committee, on which Democrats have a narrow one-vote margin.
Delaney’s nomination was held up for months as California Sen. Dianne Feinstein, D-Calif., was absent and Democrats could not move any party-line nominees through the committee. But it became clear last week, upon Feinstein’s return, that Delaney did not have enough Democratic votes to move forward.
The committee chairman, Sen. Dick Durbin, D-Ill., declined to hold a vote on Delaney’s nomination as the panel considered other nominees. He then skipped over Delaney again this week when the committee met on Thursday.
After last week’s meeting, Durbin said the votes weren’t yet there.
“It wasn’t the right moment,” Durbin said last week of Delaney. “We’ll see.”
Delaney would be the first of Biden’s judicial nominees to fail due to a clear lack of support from the full Senate. The White House has continued to back him despite the scrutiny, as did New Hampshire’s senators, Democrats Jeanne Shaheen and Maggie Hassan. But other Democrats had expressed concerns.
Democratic Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Cory Booker of New Jersey had all indicated that they were undecided in recent months.
“For me personally, reproductive rights is a fundamental, core issue,” Blumenthal told The Associated Press in March. “And I think I’d want to know why he put his name on the brief and what it reflects in his personal view.”
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 the physician.”
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.
At Thursday’s committee meeting, Durbin was quiet on Delaney’s nomination and faced criticism from some Republicans.
South Carolina Sen. Lindsey Graham, the top Republican on the committee, said the parents of the victim involved in the boarding school litigation had come to the committee “continuously” and that Delaney had not sufficiently answered questions about that case.
“I understand and share their concerns,” Graham said. “I urge the Biden administration to withdraw Mr. Delaney’s nomination.”
Delaney told the committee that he had had “limited involvement” as a lawyer in the criminal case, in which a former student was eventually sentenced to a year in prison for sexually assaulting another student. Delaney said he was instead part of a team of “advocates for the school” who responded to civil claims filed by the family.
The expectation of Delaney’s withdrawal was first reported by Bloomberg Law.
