Controversial judge tests New Hampshire senators’ clout

New Hampshire’s two Democratic senators are lobbying with uncharacteristic zeal on an issue dividing their caucus — confirming a judicial nominee under scrutiny for his handling of a sexual assault case at a prestigious boarding school.

Now, with Michael Delaney’s nomination to the First Circuit Court of Appeals nearing a committee vote, Sens. Jeanne Shaheen and Maggie Hassan are going all out to get him confirmed — in what’s shaping up as a referendum on the duo’s clout in the chamber.

At caucus lunches and in individual conversations with members of the Senate Judiciary Committee, Shaheen and Hassan are advocating hard for Delaney, pushing back on concerns about his work defending the boarding school St. Paul’s in a civil lawsuit brought by a student who was sexually assaulted by another student.

Several Democrats are privately balking at the nomination. And it would be a second significant loss for the New Hampshire senators, after their unsuccessful effort to dissuade President Joe Biden and the Democratic Party from ending New Hampshire’s first-in-the-nation presidential primary in 2024. While colleagues speak reverently of the two Democrats, Delaney will test just how much influence they really wield.

Some in the caucus have started to quietly question why Shaheen and Hassan, who are known for their collaborative natures and prevailing in tough Senate races, are going to the mat for a nominee with such a controversial record. And even the duo’s best efforts may not be enough.

“There’s a lot of concerns that are being aired from groups that I really respect. I’m going to listen to them, I’m going to read their statements and things to me. I’m going to learn more,” said Sen. Cory Booker (D-N.J.), a member of the Judiciary Committee. He also described Hassan and Shaheen as “two dear friends whose judgment I trust.”

Sen. Mazie Hirono (D-Hawaii), another member of the panel who has spoken to both senators, was also noncommittal: “I haven’t decided how I’m going to vote for him yet. That’s all I’m going to say at the moment.”

It’s a rare step into the spotlight for the Democratic pair of Granite Staters, who are known more for cutting bipartisan deals than stirring up trouble. But when it comes to Delaney, they’re not holding back.

In making her case to confirm Delaney, Shaheen said in a brief interview that she’d told the caucus about “what a great job he did as attorney general and in private practice” and wants “to correct the misinformation that’s been put out there about him.”

Concerns about Delaney extend beyond the legislative branch. Outside groups that typically align with the administration have expressed deep concerns or even outright opposition to Delaney. In addition, officials at the White House were uneasy about Delaney but felt they couldn’t pick a fight with the New Hampshire senators after the state lost its first-in-nation primary status, according to a person who was told by the White House.

Biden pressed to reorganize the primary calendar on Dec. 1; Delaney was nominated on Jan. 18. Shaheen pushed back on any suggestion that the two events could be linked: “no connection at all.”

“The President nominated Michael Delaney based on his three decades of legal experience, including his time as a front-line prosecutor combating violent crime, and his leadership fighting human trafficking," said White House spokesperson Andrew Bates. “As is typical for judicial nominations, the President consulted with Senators Shaheen and Hassan; it would be very unusual if he hadn’t. Then the President made his call, and is standing shoulder to shoulder with New Hampshire’s Senators in support of this qualified nominee.”

It’s also not unusual for home-state senators to have substantial sway over judicial nominees. In this case, Delaney would be New Hampshire’s pick on the New England-based First Circuit.

While Shaheen and Hassan tout Delaney’s credentials, some Senate Democrats privately wonder why the two don’t cut their losses and go with another option. And there’s increased anxiety over nominees lately, given Democrats’ focus on confirming judges in divided government and the withdrawal of two high-profile nominees earlier this month.

“Nobody seems to have a clear idea as to what explains their intensity,” said one Democratic senator, granted anonymity to speak candidly about the situation. “Except maybe they’re out on a limb. Maybe there’s a certain amount of competitive pride. They are such really great senators, you know, maybe there’s somebody else who could go right through.”

Sen. Sheldon Whitehouse (D-R.I.), however, gets where Shaheen and Hassan are coming from. In his words, it’s a “small-state thing.”

“If it were Rhode Island, I’d feel the same way,” he said. “You don’t get very many. If you do and you know the people [who are nominated] it’s much more tangible and real than if it’s just someone picked by your appointments advisory committee out of a stack of resumes.”

Delaney’s representation of St. Paul’s School in a sexual assault case is perhaps his greatest obstacle. Delaney filed a motion that would have allowed the plaintiff, who was a minor at the time, to remain anonymous only if she and her representatives did not speak about the case publicly, spurring accusations that he was trying to silence an alleged victim of assault. Senate Republicans made the case a top focus during his confirmation hearing and Delaney is not expected to get any GOP votes in committee, where Democrats enjoy a one-seat majority when every senator is in attendance.

But it’s more than just the school sexual assault case. Delaney has also drawn scrutiny from Democrats for signing on to a 2005 legal brief defending parental notification in abortion cases.

A committee vote on Delaney’s nomination has been delayed for weeks, partly because of Sen. Dianne Feinstein’s (D-Calif.) prolonged absence as she recovers from shingles. That gives the New Hampshire senators more time to convince their colleagues, although it’s left the nomination hanging in limbo for a while.

“His entire career has demonstrated a commitment to justice,” Hassan said in an interview Tuesday. “He started sexual assault response teams as attorney general. And he has just extraordinary support statewide, from plaintiffs’ attorneys, from defense attorneys, from former New Hampshire Supreme Court Justices appointed by both parties.”

Yet Judiciary Committee Democrats aren’t the only senators who are on the fence. Sen. Elizabeth Warren (D-Mass.) said she’ll “review the full record if he’s voted out of committee.” And Sen. Ed Markey (D-Mass.) said he hasn’t begun considering the nomination.

Still, Democratic senators respect the hustle from Shaheen and Hassan. Sen. Peter Welch (D-Vt.), a member of the Judiciary panel, said Delaney “couldn’t have two better advocates.” Meanwhile, Senate Majority Leader Chuck Schumer also supports the nominee.

And some Democrats say they’re surprised at the quandary that Delaney — and his backers — are now in. Senate Judiciary Chair Dick Durbin (D-Ill.) called Shaheen and Hassan’s advocacy “extraordinary. But it’s extraordinary the attacks that are coming at this nominee. So, you got to look at the wealth of support that this nominee has.”

Asked if he will still put Delaney up for a vote, Durbin replied: “It’s on the calendar.”