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Biden judicial nominee, under fire for school sexual assault case, withdraws after Democrats balk

<i>Mary F. Calvert/Bloomberg/Getty Images</i><br/>President Joe Biden’s nomination of Michael Delaney (pictured here) to join the 1st US Circuit Court of Appeals is likely to be withdrawn.
Mary F. Calvert/Bloomberg/Getty Images
President Joe Biden’s nomination of Michael Delaney (pictured here) to join the 1st US Circuit Court of Appeals is likely to be withdrawn.

By Tierney Sneed, Lauren Fox and Arlette Saenz, CNN

(CNN) — Embattled judicial nominee Michael Delaney has asked President Joe Biden to withdraw his nomination for a prestigious appeals court, according to a letter obtained by CNN.

Delaney, a former attorney general of New Hampshire, had attracted the opposition of Senate Judiciary Committee Republicans and skepticism from the committee’s Democrats for a case where he represented an elite boarding school that was sued by a student who was sexually assaulted on its campus.

The withdrawal comes as Biden’s push to confirm new judicial nominees has slowed this year.

In his first two years in office, Biden broke records with his pace of judicial confirmations – an effort that rested on Democratic senators being unified behind his choices for the federal bench because of the Senate’s 50-50 split last term. Delaney is the first Biden judicial nominee to run into this level of public resistance from members from the president’s own party.

Delaney was not asked by the White House to withdraw his nomination, according to a source familiar with the matter.

The move comes after the Judiciary Committee failed to move his nomination forward for the second week in a row despite having full attendance and a Democratic majority with the return of California Sen. Dianne Feinstein.

Judiciary Chairman Dick Durbin said the votes for Delaney weren’t there.

“President Biden put forward a deeply qualified nominee, with a long and distinguished career in public service,” White House spokesperson Andrew Bates said. “The White House will consult with New Hampshire’s Senators to identify a new nominee. 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.”

Controversial case

The boarding school case was ultimately settled under confidential terms, but Delaney came under fire during the confirmation proceedings for how he approached a request by the school that the victim only be allowed to proceed in the lawsuit anonymously if she and her legal team met certain terms.

The victim, Chessy Prout, decided to come forward publicly after the school filed its response to her request that she be allowed to keep her identity secret. Her family has played a prominent role in lobbying against Delaney’s confirmation. Some progressive organizations, as well as groups for sexual assault survivors, also raised concerns about the nomination.

At a fiery committee confirmation hearing in February, Delaney defended how he handled the case – arguing that how he approached the victim’s request for anonymity was in line with the relevant case law at the time – and touted his work with victims of crimes as a former prosecutor.

Delaney also attracted scrutiny from the left for an abortion case, when he was the deputy attorney general for New Hampshire, where his office defended in court a state law requiring that minors who are seeking an abortion inform their parents.

New Hampshire’s Senate delegation has been engaged in an aggressive effort to secure Delaney’s confirmation. The vacancy for the seat on the 1st Circuit – a Boston-based appeals that covers New England – was open for almost a year before the nomination of Delaney was announced, and the Prout family says they raised their issues with Delaney to the administration long before his nomination was announced.

“We are encouraged survivors have been taken into account by the judiciary committee,” Chessy Prout’s father, Alexander Prout, told CNN Thursday, adding that his family’s organization, I Have the Right To, would continue to work on passing bipartisan legislation to address the sexual assault of minors.

“We have just been overwhelmed with thinking that it really mattered to be persistent and to keep telling our story to the senators and their staffers,” Susan Prout, Chessy Prout’s mother, said.

In his letter, Delaney told the president that he was “honored” to have been nominated and that he was “deeply indebted to Senators Jeanne Shaheen and Maggie Hassan for their continued support of my pending nomination before the Senate Judiciary Committee.”

The New Hampshire senators – who were involved in the nomination because the vacancy was for an appellate seat tied to their state – said in a joint statement Thursday that they supported Delaney’s nomination.

“We know personally his strong character and commitment to justice, and he earned the support of New Hampshire and national leaders, from the former Director of the Office on Violence Against Women under President Obama to New Hampshire Supreme Court justices appointed by members of both parties,” Hassan and Shaheen said. “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.”

Slowed process

Feinstein’s several-week absence from the Senate had slowed the Democrats’ confirmation machine to a certain extent, though they were able to advance nominees that had bipartisan support while she was away.

Since her return restored the Democrats’ tie-breaking vote on the Judiciary Committee, they moved forward with several more nominees, but Delaney was not getting support.

Additionally, some nominees appear stalled due to the lack of support from their home state senators. Democrats are observing a Senate tradition that requires a district court nominee to receive from their home state senators. The so-called “blue slip” – a physical sheet of blue paper – shows the nominee has those senators’ support. Some liberal court advocacy groups have called on Democrats to abandon the tradition for district court nominees, after it was ended for circuit court vacancies under former President Donald Trump when Republicans controlled the Senate.

Biden in recent months has had some success in putting forward nominees that had the support of Republican senators from their home states.

This story has been updated with additional developments.

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