Michael Delaney

Michael Delaney, nominee to be U.S. Circuit Judge for the First Circuit, is introduced by Sen. Maggie Hassan (D-N.H.), far left, during his Senate Judiciary Committee confirmation hearing in Washington, D.C. on February 15, 2023.

(Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images)

'Big Win for the Rights of Many' as Biden's Pro-Corporate Judicial Nominee Withdraws Name

"A lifetime appointment to the federal bench is perhaps the most privileged seat in our country," said one economic justice advocate. "It shouldn't be handed out like a party favor."

Advocates for workers' rights and economic justice were among those applauding on Thursday as Michael Delaney, the former attorney general of New Hampshire, asked U.S. President Joe Biden to withdraw his nomination to join the U.S. Court of Appeals for the 1st Circuit, following outcry from progressives regarding his record and his positions on issues including regulation and abortion rights.

Delaney's request came a day after eight progressive groups wrote to the Senate Judiciary Committee and asked the panel to block Delaney's nomination.

"Mr. Delaney’s record in private practice, as deputy attorney general for the state of New Hampshire, and as a volunteer member of the New England Legal Foundation's (NELF) board of directors demonstrates a hostility to victims' rights, reproductive rights, employee rights, and government regulation that is unsuitable for the lifetime appointment for which he is being considered," wrote the groups, including Demand Progress, the American Economic Liberties Project (AELP), the Revolving Door Project, and the National Employment Law Project.

Democratic Sens. Jeanne Shaheen and Maggie Hassan, who both represent New Hampshire, had been pushing their colleagues to support Delaney's confirmation. Unanimous support from all Democrats on the Judiciary Committee is needed to bring the nomination to the Senate floor for a vote, and some members had been hesitant to back Delaney.

"His nomination for a lifetime appointment to a federal appellate court in an age where these groups are under sustained courtroom attacks does not meet the moment."

Democratic lawmakers and rights advocates have particularly objected to Delaney's work defending St. Paul's School when a student filed a civil suit alleging a sexual assault by a classmate.

The elite boarding school requested that the survivor only be given anonymity in the case if she and her legal team met certain terms. The survivor, Chessy Prout, came forward after the school made the request, and she and her family lobbied aggressively against Delaney's nomination.

"I know Michael Delaney," wrote Prout in The Boston Globe after Delaney's nomination was announced. "After what he did, he doesn't deserve to be a judge."

Delaney has also been under fire since his nomination for signing a brief that defending an abortion restriction in New Hampshire and for his connection to NELF, whose stated mission champions "individual economic liberties, traditional property rights, properly limited government, and inclusive economic growth" as well as "vigorous advocacy of free market principles."

The group filed an amicus brief in 2021 in West Virginia v. Environmental Protection Agency, arguing that the EPA's ability to impose emissions regulations to fight the climate crisis should be curtailed.

The eight groups that wrote to the committee on Wednesday focused on Delaney's position on monopoly power. In his response to a question from Sen. Josh Hawley (R-Mo.) during his confirmation hearings, they noted, Delaney said a threshold of 80% to 95% of market share qualified as a monopolization claim—denoting what Katherine Van Dyck, senior legal counsel at AELP, said was "a firm allegiance to corporate power, and an animosity toward efforts to hold corporations accountable."

As the groups wrote, "This suggests that Mr. Delaney could set a threshold of 80% or more if seated on the 1st Circuit, a position that is inconsistent with federal jurisprudence where a threshold market share is not even a mandatory element of monopolization claims."

"Granting Mr. Delaney a seat on the 1st Circuit would be a gift to opponents of the so-called 'administrative state' and a boon to corporate power," the groups added. "It would pose serious threats to the rights of some of the most disadvantaged members of our economy, from women who cannot obtain reproductive health services to underpaid and overworked laborers. His nomination for a lifetime appointment to a federal appellate court in an age where these groups are under sustained courtroom attacks does not meet the moment."

The withdrawal of Delaney's nomination, said Van Dyck on Thursday, represents "a big win for the rights of many."

"This was the right result, and I'm confident that we can find a better nominee for the 1st Circuit," Van Dyck added.

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