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Former N.H. attorney general is Biden's pick for appeals court. He faces rare Democratic scrutiny

New Hampshire Attorney General Michael Delaney speaks about drug abuse issues in Concord, N.H., Feb. 22, 2013. (Jim Cole/AP)
New Hampshire Attorney General Michael Delaney speaks about drug abuse issues in Concord, N.H., Feb. 22, 2013. (Jim Cole/AP)

One of President Biden's nominees to a federal appeals court has generated rare concern from some Democrats and outside groups over his signature on a legal brief defending a parental notification law in New Hampshire, injecting the issue of abortion into his confirmation fight from an unexpected flank.

Michael Delaney, nominated for the 1st U.S. Circuit Court of Appeals, based in Boston, said in written testimony to senators that he did not write the 2005 brief and otherwise had “extremely limited involvement” in the case that was brought while he was deputy attorney general in New Hampshire.

But the signing of the brief, along with 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, is complicating a confirmation fight in which the White House has little room for error.

The close attention on an abortion case also shows how stakes are ever-higher in a post-Roe v. Wade world. Access to abortion could hinge on lower-level judges now that the U.S. Supreme Court has overturned the constitutional right to the procedure and advocates on both sides want near-certainty as they assess nominees. The issue helped derail one proposed Biden pick last summer when the White House decided not to nominate an anti-abortion lawyer in Kentucky following an outcry from Democrats.

Delaney’s case will test how far Biden will push Democrats to support his nominees to the federal bench even after the White House sets records in the number of appointments in his first two years. It will also test the power of personal persuasion in the clubby Senate, whose members can often be influenced by fellow members whose counsel they trust.

In this case, both New Hampshire Democratic senators, Jeanne Shaheen and Maggie Hassan, strongly back Delaney and are deeply respected by other senators. Both are also fierce supporters of abortion rights.

At issue is a New Hampshire law, passed in 2003 but repealed in 2007, that required minors to tell their parents before they obtained an abortion.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.”

Delaney's involvement is detailed in response to written questions from Sen. Dianne Feinstein, D-Calif., that he submitted after his confirmation hearing last month. But his signature on the brief has caused consternation for Sen. Richard Blumenthal, D-Conn., a member of the Senate Judiciary Committee and a strong supporter of abortion rights.

“For me personally, reproductive rights is a fundamental, core issue," Blumenthal told The Associated Press. "And I think I’d want to know why he put his name on the brief and what it reflects in his personal view.”

Besides Blumenthal, two other Democratic members of the closely divided Senate, Cory Booker of New Jersey and Mazie Hirono of Hawaii, have also expressed general reservations about his nomination, particularly as it relates to the St. Paul's case. And at least one other Democrat on the Senate Judiciary Committee is concerned about Delaney’s involvement in the Planned Parenthood case, according to a person familiar with the senator’s thinking who spoke to the AP on the condition of anonymity to discuss ongoing deliberations over the nomination.

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One factor being weighed is how much Delaney's involvement in the brief was just a matter of course in his job. Delaney told senators that he was not involved in the decision to appeal the case to the Supreme Court, nor did he represent New Hampshire during oral arguments there. He was not directly involved in formulating the brief's arguments, he said, and while he read the brief before it was submitted, he said he does not recall whether he offered substantive feedback.

In a statement to the AP, former New Hampshire Gov. John Lynch, a Democrat, said: “Mike Delaney strongly supports women’s reproductive freedom."

Lynch said he disagreed with then-Attorney General Kelly Ayotte on the Planned Parenthood case. “When Mike became my legal counsel, he worked with me to successfully repeal the law at issue in the case,” he said.

Still, in private conversations, groups that support abortion access have similarly raised questions about why Delaney signed a brief that defended abortion restrictions. They have been dissatisfied with the responses.

In a previously unreported letter, the National Council of Jewish Women said it would oppose the confirmation of Delaney, the first nominee from the Biden administration that it has rejected. The group pointed to his representation of St. Paul’s as well as to his signature on the Planned Parenthood brief.

Saying federal judges should have a record that “evidences fairness, independence, fidelity to constitutional values, and respect for the individuals who appear before the court seeking justice,” the group wrote in the letter that ”unfortunately, after reviewing the record, we do not think that Mr. Delaney possesses those important qualifications.”

The White House continues to support Delaney's nomination. Privately, White House officials are concerned that focusing on one motion or case could set a precedent for Republican opponents of Biden's picks to undermine other candidates for the bench, according to a person with knowledge of the internal deliberations who insisted on anonymity to discuss them.

“This was the first we had heard that anyone was interested in more information beyond his 116 pages of thorough, under-oath answers," White House spokesman Andrew Bates said in a statement. "Michael Delaney has three decades of legal experience, including his service as Attorney General and Deputy Attorney General of New Hampshire, and he is well-qualified to serve in this important position. The White House expects Senators to take his full record into account when evaluating his nomination.”

Planned Parenthood Federation of America, a potent political force in Democratic politics, was noncommittal on Delaney's nomination, saying in a statement: “Planned Parenthood conducts a review of the records of federal judicial nominees. Our review of this nominee and his involvement in the Ayotte case is ongoing.”

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.

Shaheen and Hassan have worked privately to lobby colleagues. In a closed-door lunch with other Democratic senators earlier this month, Shaheen and Hassan made their case while offering what attendees described as more context and history on his involvement in the St. Paul’s case. During that meeting, the two senators also distributed copies of an endorsement letter from Susan Carbon, a longtime state judge in New Hampshire who served as director of the Office on Violence Against Women during the Obama administration.

“He has the experience, the intellect, the character and commitment to justice, and a broad, broad amount of support, including from advocates for victims,” Hassan said. Delaney has been rated well qualified by the American Bar Association, and Judiciary Committee Chairman Dick Durbin, D-Ill., says he will support him.

Still, concerns persist among a handful of Democrats.

Booker said he had some “preliminary concerns” about how Delaney handled the sexual assault case. Hirono said she was prepared to support him after his confirmation hearing but said she was now reviewing his written testimony and added: “So we shall see.”

Blumenthal added: “Having concerns doesn’t necessarily mean that any of us will oppose his nomination.” Still, most Democrats on the committee said they were undecided on whether to confirm him.

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