Bloomberg Law
March 15, 2023, 3:30 PMUpdated: March 15, 2023, 10:16 PM

Senate Judiciary Absences Stall Embattled Circuit Nominee (2)

Tiana Headley
Tiana Headley

The Senate Judiciary Committee delayed consideration of a Biden appellate nominee criticized for his representation of a prep school during its litigation with a student victim of sexual assault, as a key senator’s absence persists and pressure from progressive groups mounts.

Michael Delaney was poised for a vote on Thursday on his selection to the US Court of Appeals for the First Circuit after he was held over from the March 9 markup, a routine practice afforded to most nominees after their confirmation hearing.

But the absence of Sen. Dianne Feinstein (D-Calif.) as she recovers from shingles continues to complicate committee business.

Charnelle Bjelkengren, nominated for a Washington trial court, was also delayed. She would be the first Black woman federal district judge in Washington state. Bjelkengren has been a target of Republican opposition after stumbling over questions at her hearing.

Judiciary Chair Dick Durbin (D-Ill.) told reporters on Tuesday that he hopes Feinstein is back soon. She could be a key vote for both Delaney and Bjelkengren in the committee, where Democrats hold a one-seat majority.

Nominees need a simple majority to advance with a favorable recommendation to the floor. Tie votes in committee could advance in the last Congress under a Senate power-sharing agreement between the evenly divided parties. But that’s no longer the case with Democrats holding an outright majority.

The markup cancellation comes as three progressive groups submitted a joint memo to senators saying they have “grave concerns” about Delaney’s nomination.

The National Women’s Law Center, The Leadership Conference on Civil and Human Rights, and People for the American Way urged senators “to further examine” Delaney’s record.

Sen. Jeanne Shaheen (D-N.H.), who introduced and endorsed Delaney at his confirmation hearing, pushed back on the memo.

“I think those progressive groups did not do their homework very well,” Shaheen said on Wednesday. “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.”

Critics have focused on a Delaney motion during proceedings for the then-teenage victim to shed her anonymity and an allegation that he tampered with witnesses during the litigation.

At his Feb. 15 confirmation hearing, Delaney detailed the school’s position on the anonymity motion and said in written responses to questions from committee members that his work in the case wouldn’t color his new duties, if confirmed.

“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.

Other delayed nominees include Orelia Merchant for the Eastern District of New York in Brooklyn, and Robert Kirsch and Michael Farbiarz for trial court seats in New Jersey. All three were expected to receive a vote during the March 9 markup.

(Adds Delaney's responses to written questions from senators about New Hampshire case beginning in paragraph 12. A previous version was corrected to show that tie votes in committee can no longer advance. )

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