On Wednesday, the Senate Judiciary Committee held a confirmation hearing for Michael Delaney, who the Biden Administration has nominated to fill a vacancy on the First Circuit Court of Appeals. Very quickly, it became apparent that Delaney's nomination would be controversial, as he appeared by himself rather than on a panel with other nominees as is the usual practice for non-Supreme Court nominees. As Carrie Severino explained for National Review, Delaney's role in the public naming of an underage sexual assault victim while representing her school in a civil suit is embarrassing for Democrats:
The freshman student, Chessy Prout, was allegedly raped by a senior, Owen Labrie, who was engaging in a sick custom known as the “senior salute” in which upperclassmen preyed on younger students. Labrie was convicted of misdemeanor sexual assault and endangering the welfare of a child. The Prout family sued the prep school, St. Paul’s, alleging that the school had failed to curb a pervasive environment of sexual abuse.
Chessy Prout had initially been identified as Jane Doe, but Delaney argued on behalf of the school that she should remain anonymous only if her family would not speak to the press about the case. The family did not muzzle themselves, and Delaney asked the court to lift the victim’s anonymity at trial. As reported by the Boston Globe, her father, Alex Prout, said that this motion “wasn’t a legal tactic,” but “a threat.” Both he and the victim’s mother attended Delaney’s nomination hearing.
By Chessy Prout’s own account, summarized in a letter submitted to the Senate Judiciary Committee, after “reading Michael Delaney’s motion front to back when I came home from my new high school one day, processing what it meant,” she decided to shed her anonymity. “I wasn’t going to let Michael Delaney’s dirty tactics bully me, then 16, into shame and silence.”
The testimony of Republican members of the Committee against Delaney's nomination provided an important defense for victims' rights, and forced Delaney to answer for his hardball tactics—he didn't do a very good job.
If the Senate confirms Michael Delaney to the 1st Circuit – what message is that sending to victims of sexual assault? pic.twitter.com/3h7nXAGmdk— Senator Ted Cruz (@SenTedCruz) February 16, 2023
The way Michael Arthur Delaney treated a young victim of sexual assault is unacceptable and disqualifies him.— Sen. Marsha Blackburn (@MarshaBlackburn) February 15, 2023
I won't be voting for his nomination because of the terrifying message it sends to women. pic.twitter.com/Ea3kliVPqR
Now Biden is nominating for the bench a guy who sought to strip a sexual assault victim of anonymity and drag her name through the mud - when she was 16! pic.twitter.com/99Z1Piuj2P— Josh Hawley (@HawleyMO) February 15, 2023
When asked about his tactic on behalf of the school, the nominee dug himself into a deeper hole by repeatedly stating that the school agreed to anonymity, which was evasive to the point of deception. Senator Ted Cruz confronted him with his “false answer” by reading from the court record Delaney’s motion to lift anonymity, plain as day, stating “the school shall be entitled to identify plaintiffs and JD during discovery. Plaintiffs and JD should not be allowed to proceed under pseudonyms at the trial of the matter.”
CNN has reported that the Democrats' typically united front on Biden's judicial nominees is wavering on Delaney's nomination:
Durbin, who asked Delaney about the case, was one of only two Democratic members of the committees who showed up to question Delaney at the hearing. The other, Hawaii Sen. Mazie Hirono, told CNN she was inclined to support him; however, Durbin indicated after the hearing he was still undecided.
Another Democratic senator told CNN that the nominee “has real problems” and believes that neither Delaney nor the White House fully thought through this nomination. The senator was uncertain whether to vote for the nominee.
The confirmation of Michael Delaney to the First Circuit would send a chilling message to victims of sexual assault. The Biden Administration should withdraw the nomination.