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Michael Arthur Delaney, nominee to be U.S. circuit judge for the First Circuit, is introduced by Sen. Maggie Hassan (D-NH), far left, during his Senate Judiciary Committee confirmation hearing, February 15, 2023, on Capitol Hill.
UPDATE: Delaney’s nomination was held over again on Thursday. No Democrat spoke in his favor, though two Republicans reaffirmed their opposition. Whether Delaney will be voted on in the future is uncertain.
Today, the Senate Judiciary Committee is once again scheduled to take up Michael Delaney’s long-delayed nomination for a spot on the First Circuit Court of Appeals. Delaney, a New Hampshire attorney and former state attorney general, was due for a vote last week after Sen. Dianne Feinstein (D-CA) returned to Washington, giving the committee its first full slate of Democrats in months. But Delaney was held over, amid uncertainty on whether there were enough votes to clear him.
Delaney faces controversy over representing elite boarding school St. Paul’s in a sexual assault case brought by a 16-year-old student, where he tried to place a gag order on the plaintiff and her family in exchange for keeping her identity a secret. The plaintiff, who later came forward and is named Chessy Prout, has accused Delaney of witness tampering in the case.
Others have questioned Delaney’s role in Ayotte v. Planned Parenthood, where Republican then-Attorney General Kelly Ayotte (who later became a senator) defended a parental notification law in New Hampshire; Delaney was Ayotte’s deputy, and his name appeared on briefs in the case, which went all the way to the Supreme Court. More recently, Delaney has been criticized for his volunteer service on the board of the New England Legal Foundation (NELF), a limited-government outfit that opposed Biden administration policies in Supreme Court cases.
A new round of opposition surfaced this morning. Eight progressive organizations submitted a detailed letter opposing Delaney, on the grounds that he “would be a gift to opponents of the so-called ‘administrative state’ and a boon to corporate power.” The letter cited numerous Supreme Court amicus briefs from NELF opposing regulations on polluters, employee rights to access the courts, and the authority of administrative agencies. Delaney’s position on corporate monopolies, which suggested he would set a very high bar for certain Sherman Act cases, was also cited.
Molly Coleman, executive director of the People’s Parity Project and a signatory to the letter, commented to the Prospect: “We’re opposed to Delaney’s confirmation on multiple grounds,” she said. “His troubling record on both sexual assault issues and matters related to corporate power make clear that he’s not somebody who should be elevated to the bench.”
This kind of cloud hanging over a nominee would in most cases lead to withdrawal from consideration. Yet while several Senate Democrats, including Feinstein, have expressed concerns, nobody has explicitly announced opposition to Delaney. Under President Biden, 128 nominees have been confirmed to the federal bench, and not one has been rejected by a Democrat, part of a kind of informal nonaggression pact when it comes to judges.
This conspiracy of silence extends to progressive organizations, inside and outside of New Hampshire. The lead group on the letter, the American Economic Liberties Project (AELP), which announced its opposition in a similar missive last week, had trouble finding signatories, despite the litany of disconcerting elements in Delaney’s background. In the end, only one group that primarily focuses on judges and the courts, the People’s Parity Project, signed. The Prospect asked 15 organizations that do focus on judges and have signed letters about judicial actions in the past to comment about Delaney; nearly all of them declined.
Even when scrutiny is heightened, the Democratic herd mentality makes it difficult to disqualify judicial nominees for their views.
And despite Democratic angst in New Hampshire about the nomination of the lead deputy of a pro-life attorney general to a lifetime judgeship, it’s nearly impossible to get anyone to speak on the record. The fact that a well-respected New Hampshire–based grassroots progressive organization known as the Kent Street Coalition signed the AELP letter was seen as a major coup.
What accounts for this reticence to oppose a Democratic nominee whose record suggests misalignment with Democratic values? Sources tell the Prospect that New Hampshire’s two Democratic senators, Jeanne Shaheen and Maggie Hassan, who recommended Delaney to the White House, have loomed large. Other senators don’t want to bring down Shaheen and Hassan’s selection, for fear that their judges would get blocked in retaliation when they came up for a vote. New Hampshire Democrats don’t want to cross Shaheen or Hassan either, and national progressive groups either haven’t focused on judicial fights or generally fear rocking the boat.
The result is that, even as Biden has been exulted for bringing long-overdue racial and gender diversity to the judiciary, there’s less of a sense of how his judges will actually rule. And even when scrutiny is heightened, the Democratic herd mentality makes it difficult to disqualify nominees for their views.
DELANEY’S NOMINATION WAS DESCRIBED by New Hampshire observers as an inside game. Home-state senators are instrumental in recommending judges to the executive branch. Incredibly, Sens. Shaheen and Hassan appear to have no formal process or recommendation committee for judicial nominees. According to Delaney’s Senate Judiciary Committee questionnaire, he applied for the First Circuit position in February 2022, to replace Jeffrey Howard. Within weeks, he interviewed with Shaheen and Hassan staffers, then officials in the White House, then the senators themselves. But he wasn’t selected as a nominee until January 2023, after Hassan’s close re-election campaign.
Interestingly, both Shaheen and Hassan instituted and used a judicial recommendation process at the state level when they served as governors. But that has not carried over into the Senate.
According to two sources who sought anonymity because of their work on the nomination, Hassan’s husband Thomas is personal friends with Delaney. Another source explained how Delaney was part of an elite club in a small state. He was former Gov. John Lynch’s chief legal counsel, a well-regarded attorney at McLane Middleton, and a member in good standing with the party establishment.
When Biden nominated him in January, Shaheen and Hassan were quick to applaud the choice. Ever since, they have stood by him, lobbying the caucus and pushing back on the mounting criticism, which Shaheen has called “misinformation.” For their part, the White House has continued to strongly back Delaney.
The senators have asked their colleagues to review Delaney’s full record, and highlighted stances in favor of LGBTQ rights and environmental protection. They’ve cited support from local judges and state attorneys general who worked with him. But at Delaney’s confirmation hearing, attended by only two Democrats, he was pummeled by Republican questioners, to the degree that even Judiciary Committee chair Dick Durbin called the exchanges rough.
After the National Women’s Law Center, the Leadership Conference on Civil and Human Rights, and People for the American Way used a joint memo in March to express their “grave concerns” over Delaney’s conduct in the St. Paul’s case, Shaheen told Bloomberg, “I think those progressive groups did not do their homework very well … They did not really talk to the broad range of supporters that he has in New Hampshire, and they have factual inaccuracies in what they’ve said.”
Inside New Hampshire, that statement was seen as a shot across the bow to other groups to keep their disquiet about Delaney to themselves. It has mostly worked, though the Kent Street Coalition’s appearance on the AELP letter was seen as a break with this trend. Founded in 2016 in opposition to Donald Trump, the group affiliates with no party and works on policy campaigns in the state. But one group speaking out is not indicative of the frustration and anger among progressives and other advocates in the state, which has been muted due to fear of retribution from the senators or their staffs.
AELP was initially told that judicial groups would have difficulty signing an opposition letter on Delaney. The Revolving Door Project, a Prospect partner that focuses on executive branch personnel of all kinds, was a signatory, as was the People’s Parity Project and Demand Progress, another anti-monopoly group. Revolving Door Project’s Jeff Hauser and Michael Kink of the Strong Economy for All Coalition, another signatory, have publicly opposed Delaney’s nomination recently. Freedom BLOC and the National Employment Law Project added their names to the letter as well.
The Prospect wrote to 15 judicial watchdog groups on the Democratic side. Julie Gallego with the Mexican American Legal Defense Fund (MALDEF) said, “We do not have a public position on Delaney.” Zack Ford, spokesperson for the Alliance for Justice, also said, “We’re not commenting publicly on Delaney at this time.” (Delaney’s work for the free-market New England Legal Foundation does not appear in AFJ’s fact sheet on Delaney.) Alexa Barrett of Take Back the Court referred the Prospect to the People’s Parity Project. None of the other groups responded.
One of the groups that didn’t respond was Demand Justice, which has led the way in urging Biden to add diversity to the court in all dimensions, including by not nominating corporate lawyers. But Paige Herwig, the lead White House official on judicial nominations, was deputy chief counsel at Demand Justice, which could make it hard for them to criticize individual nominees. (Herwig recently announced she was leaving the White House.)
The relative silence from judicial groups mirrors the response from most national and state abortion rights groups, despite Delaney’s role in Ayotte v. Planned Parenthood. Delaney has said that he had “extremely limited involvement” in that case.
DESPITE THE PUBLIC CAGINESS, the nomination has kicked up enough dust for several Democratic senators to pronounce themselves undecided, including Sens. Cory Booker (D-NJ), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), and Dianne Feinstein (D-CA), all of whom sit on the Judiciary Committee. Feinstein’s staff issued a series of tough questions over the St. Paul’s School case, which make up 41 pages of the 116-page questionnaire. Some senators outside the committee have been noncommittal as well.
Booker and Blumenthal’s offices did not return a request for comment.
With such a closely divided Senate, nearly all Democrats are reluctant to knife a fellow senator’s nominee, for fear of retribution. Outside of wild-card Sens. Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ), the rest of the caucus sticks together on most votes, party discipline instilled by Senate Majority Leader Chuck Schumer (D-NY). And even Manchin and Sinema haven’t knocked out any judicial nominees.
Some progressive groups have resisted coming out against Delaney because they litigate cases, and could come up against the nominee if he were confirmed as a judge. Others feel they might need Hassan’s or Shaheen’s support down the road. In a small state like New Hampshire, this dynamic is particularly pronounced.
To those groups opposing him, the stakes for the Delaney nomination, and Biden’s judicial record, are high. A recent merger case that was a Biden appointee’s first federal trial ended with a Justice Department settlement, because the agency feared an adverse ruling that would set a pro-corporate precedent.
Delaney participated, not as a paid attorney but in his free time, with a corporate-funded limited-government legal foundation that decried a “vast and improper expansion” of Environmental Protection Agency authority in the case that eventually struck down the agency’s power plant rule. Other briefs sided with Uber, Facebook, Deutsche Bank, and the U.S. Chamber of Commerce. This gives opponents pause that a Biden lifetime appointee would operate more like a conservative jurist on corporate power questions.
