White House expected to withdraw federal appeals court nomination, in judicial defeat for Biden

In a rare judicial defeat for President Joe Biden, the White House is expected to soon withdraw the nomination of Michael Delaney for the Boston-based 1st U.S. Circuit Court of Appeals, according to a person familiar with his confirmation process.

Delaney’s nomination lacks the needed votes in the Senate Judiciary Committee, said the person, who spoke on condition of anonymity because the decision had not yet been made public.

His inability to secure the necessary Democratic votes both in the committee and on the floor is partly due to concerns over a legal brief on abortion that he signed as deputy attorney general in New Hampshire. The brief defended a parental notification law in the state.

Delaney also faced 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.

Delaney said in written testimony to senators that he did not write the 2005 abortion brief and otherwise had “extremely limited involvement” in the case that was brought while he was deputy attorney general in New Hampshire. But he was never able to gain the support of enough Democrats to win approval in the committee, on which Democrats have a narrow one-vote margin.

The committee chairman, Sen. Dick Durbin, D-Ill., declined to hold a vote on Delaney’s nomination in the committee's meeting on Thursday, as he did last week. He said a week ago that the votes weren’t yet there for Delaney.

“It wasn’t the right moment,” Durbin said last week. “We’ll see.”

New Hampshire's senators, Democrats Jeanne Shaheen and Maggie Hassan, strongly backed Delaney. But other Democrats had expressed concerns.

Democratic Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Cory Booker of New Jersey had all indicated that they were undecided in recent months.

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

At issue is a New Hampshire law, passed in 2003 but repealed in 2007, that required minors to tell their parents before they obtained an abortion.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