Bloomberg Law
May 18, 2023, 3:20 PMUpdated: May 18, 2023, 8:02 PM

Embattled Biden First Circuit Pick Delaney Asks to Withdraw (3)

Madison Alder
Madison Alder

Michael Delaney asked the White House to withdraw his nomination from consideration to be a federal appellate judge after it stalled over bipartisan concerns, according to a letter obtained by Bloomberg Law.

Delaney, a former New Hampshire attorney general nominated to the US Court of Appeals for the First Circuit, faced criticism from Republicans and progressives about his representation of a New Hampshire prep school years ago in sex assault litigation involving a student.

“I am most respectful of the Senate’s constitutional role in considering my nomination. At this time, I believe it is appropriate for me to withdraw my name from consideration for this position to advance the important work of the federal judiciary,” Delaney wrote Thursday in a letter to President Joe Biden.

White House spokesman Andrew Bates said Biden “put forward a deeply qualified nominee” in Delaney, and would now consult with New Hampshire Democratic Sens. Maggie Hassan and Jeanne Shaheen on a new nominee.

Senate Judiciary Committee votes on Delaney’s nomination were postponed several times in recent months amid the backlash. Two committee Democrats, Richard Blumenthal (Conn.) and Cory Booker (N.J.), said recently they had “concerns” about his nomination. Sen. Mazie Hirono (D-Hawaii) said she hadn’t made up her mind.

On Wednesday, eight liberal groups wrote to committee leadership opposing Delaney’s nomination over concerns about his record on abortion, employee rights, regulatory, and economic issues. They pointed to his work as a volunteer member of the New England Legal Foundation’s Board of Directors, which they said demonstrated “hostility” on those issues.

The groups also said a response he gave in written questions to Sen. Josh Hawley (R-Mo.) about monopoly power gave them “pause.” Delaney’s answer, they said, was “inconsistent with federal jurisprudence.”

New Hampshire Case

Critics earlier focused on a Delaney motion during proceedings in New Hampshire for the then-teenage sex assault victim, Chessy Prout, to shed her anonymity. At his Feb. 15 confirmation hearing, Delaney detailed the position of St. Paul’s School on the motion and later asked the committee to consider the totality of his career, where he rose from a homicide prosecutor to New Hampshire’s top lawyer.

“I do not believe my role as an advocate for the school in this case would compromise my ability to be a fair and impartial judge,” Delaney said in written responses to questions from Senate Judiciary Committee members.

The First Circuit has since established precedent that sexual assault victims should be allowed to litigate anonymously.

Prout and her family urged senators to oppose Delaney, has worked in private practice at McLane Middleton with a focus on business and government litigation, as well as educational law, since leaving the attorney general’s office.

He was endorsed by New Hampshire law enforcement, retired judges, and a crime victim advocate. Hassan and Shaheen also vigorously backed his nomination.

“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,” Hassan and Shaheen said in a joint statement on Thursday.

Senate Judiciary Chairman Dick Durbin (D-Ill.) told reporters that Delaney’s supporters “for a long time” had tried to assuage colleagues’ concerns about his nomination but that he wasn’t brought up for a committee vote Thursday because he didn’t have the needed support.

“The votes weren’t there today,” Durbin said.

Delaney didn’t respond to a request for comment.

—With assistance from Zach C. Cohenand Allie Reed

(Updates with letter from Delaney.)

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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