The Volokh Conspiracy

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Biden Nominee to the First Circuit Faces Potential Democratic Opposition Over Abortion

A nominee's work defending a state parental-notification law in 2005 may be a stumbling block to his confirmation.


With the Senate nearly evenly divided, Senate Democrats do not have many votes to spare when it comes to confirming President Biden's judicial nominees, particularly those nominated to appellate courts. Repubilcans have been fairly united in opposing most of Biden's circuit court picks, so even a few Democratic defections or absences can prevent a nominee from advancing.

The Associated Press reports that Biden's nomination of Michael Delaney to the U.S. Court of Appeals for the First Circuit may be in trouble because, among other things, when he was a deputy attoreny general in 2005, he signed a brief defending the constitutionality of a New Hampshire law requiring parental notification before a minor could obtain an abortion. From the AP report:

At issue is a New Hampshire law, passed in 2003 but repealed in 2007, that required minors to tell their parents before they obtained an abortion.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

New Hampshire's two Democratic Senators still support Delaney, but other Senate Democrats might not. From the AP report:

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 [his handling of a sexual assault case at St Paul's boarding school]. 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.

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. . . .

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."