Biden appeals court nominee faces questions for role in school sexual assault case

By Tierney Sneed

The confirmation of President Joe Biden‘s nominee for a prestigious federal appeals court seat could be in jeopardy after he was grilled over his role representing an elite boarding school in a sexual assault case and a key Senate Democrat withheld his immediate support.

Former New Hampshire Attorney General Michael Delaney, who has been nominated for the 1st US Circuit Court of Appeals, faced tough questions about the case from Senate Judiciary Committee members during a hearing Wednesday.

“It was a pretty rough hearing, no question,” Judiciary Committee Chairman Dick Durbin told CNN after the hearing. “We’re going to take a closer look at his record.”

Delaney represented the New Hampshire boarding school St. Paul’s in a civil lawsuit brought against the school by the family of a student who had been sexually assaulted by another student. The school ultimately settled the lawsuit, and Delaney defended his approach to the case before the Senate panel on Wednesday. But he was scrutinized by senators for a motion he filed on behalf of the school arguing that the victim, who was a minor, should only be allowed to proceed with the case anonymously if certain conditions were met.

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 White House is standing behind the nomination. Biden and Senate Democrats are hoping to keep up with what was a notable judicial confirmation effort in the first two years of the Biden administration, when a 50-50 Senate confirmed 97 Biden judicial nominees. Biden achieved that record, in part, because Democrats remained publicly united behind nominees that moved forward in the Senate.

Delaney was nominated in January for a New Hampshire seat on the 1st Circuit that has been open since March 2022.

His supporters, who include both Democratic senators from New Hampshire, point to the endorsements he’s received from advocates for sexual assault victims, including the Obama-era head of the Justice Department’s Office on Violence Against Women. They also note the work he’s done on behalf of victims, particularly while he was in the New Hampshire Attorney General’s office.

“As a homicide prosecutor, I went into court all the time with victims of horrific violence — often times, sexual violence — and I know from those experiences, just how important the interaction between the judge on the bench and the victim of the crimes is,” Delaney said at Wednesday’s Senate hearing, He stressed that St. Paul’s wasn’t opposed to the victim’s request for anonymity and said it was his “expectation” that the school would have acceded to the request, even if the conditions St. Paul’s sought weren’t granted.

“I did my job in that case as an advocate, and I recognize if confirmed as a judge I would be playing a very different role,” Delaney said.

The parents of the victim who sued St. Paul’s attended Wednesday’s Senate hearing and afterward pushed back on how he characterized his work on the case. The victim, Chessy Prout, decided to identify herself publicly after St. Paul’s filed its response to her request for anonymity.

“My head was spinning trying to understand his answers,” Alexander Prout, the victim’s father, told reporters after the hearing. “Chessy clearly understood the intent of the motion. She read it, she came to my wife and I and said, ‘They’re trying to silence me. They’re trying to intimidate me into silence. If they think they’re going to do that, they have another thing coming.'”

The White House told CNN on Wednesday after the hearing that Delaney continues to have its support.

“Former New Hampshire Attorney General Delaney has a strong track record of upholding the rule of law, including taking action to protect vulnerable victims,” White House spokesperson Seth Schuster said in a statement, while pointing to the plaudits Delaney received for his work with sexual violence victims as the state attorney general. “The White House has the utmost respect for sexual assault and domestic violence survivors, and expects Senators to take Mr. Delaney’s full record into account when considering his nomination — as the White House did before nominating Mr. Delaney to the First Circuit.”

Response to victim’s request for anonymity under scrutiny

Delaney represented St. Paul’s as part of his work at the law firm McLane Middleton, where he was a member of the firm’s educational law practice.

The school was sued by the Prouts in 2016. Chessy Prout was sexually assaulted by an older student in 2014 and in a separate criminal case, her assailant was convicted of the use of an online service to seduce, solicit or entice a child under 16 in order to commit sexual assault but was acquitted on other more serious sexual assault charges.

In the civil lawsuit, the Prouts accused the school of “fostering, permitting and condoning a tradition of ritualized statutory rape,” arguing that the school was aware or should have been aware of a tradition known as “senior salute” in which seniors sought to “score” with as many underclass girls as possible. (The school denied many of the Prouts’ allegations in the lawsuit, but reached a confidential settlement — the specific details of which Delaney said Wednesday he was not allowed to discuss.)

Before the settlement, St. Paul’s — in a court document signed by Delaney — issued partial objections to the request by the Prout family, who had filed the lawsuit as Jane and John Doe, that the victim’s family be allowed to continue with the case under the pseudonym.

St. Paul’s filing accused the victim’s family of “carefully planning and executing a national media campaign against the School designed to embarrass the School during its graduation weekend” and said they should only be allowed to remain anonymous if they and their lawyers made no more public comments about the litigation while it was underway. Soon after the motion was filed, Chessy Prout came forward publicly as the victim, and the request for anonymity was withdrawn.

Tennessee Republican Sen. Marsha Blackburn said at Wednesday’s hearing that the position the school took under Delaney’s counsel was “disqualifying” and sent a “chilling” message to young women. Sen. John Cornyn, a Texas Republican, critiqued the legal authority that Delaney used to justify the school’s posture.

Sen. Mike Lee, a Utah Republican, suggested Delaney’s approach in the case went beyond “zealous advocacy” and into “some really murky hinterlands.”

Other Republicans on the Judiciary Committee, however, sounded more open to Delaney’s explanations, with South Carolina Sen. Lindsey Graham remarking on the support he had gotten from victims’ advocates.

Delaney pushed back at the criticisms from the GOP senators and said that the school was asking the court in the case to take a position that had been ordered in a similar case in Washington, DC. He noted that the 1st Circuit has since adopted new precedent on the use of pseudonyms for sexual assault victims that he would follow as a judge.

“The Prout family had a very strong interest in proceeding anonymously. There’s no question about that,” he said. “The school was asking the court to restrict trying the case in the media, while that anonymity was being respected by the court.”

In a letter to the Senate committee about Delaney’s nomination, Chessy Prout also accused Delaney of witness tampering in the criminal case against her assailant. She wrote that during the criminal case against her assailant, she witnessed Delaney speaking with several students, including some slated to testify in the trial, in a conference room at the courthouse.

Delaney on Wednesday vehemently rejected the witness tampering accusations. He told the committee that he did not meet with the students in question and had never interfered with witness testimony in his 30 years as a lawyer.

“It would be fundamentally inconsistent with my duty as an officer of the court. It would violate both state and criminal laws, and it did not happen,” he said.

Support from the home-state Democrats

As Democrats have pressed to counter the impact that former President Donald Trump has put on the judiciary, the stamp Biden can put on circuit courts is particularly consequential, as Trump ultimately put 54 of his nominees on the appellate bench.

Trump was boosted by Senate Republicans’ tactics of removing the leverage home-state senators have — known as a blue slip — to veto appellate nominees for seats in their home states, after using that same tool to keep vacant court seats that opened up under President Barack Obama until a Republican took over the White House.

Even though Democrats have not restored the blue slip for appeals court vacancies under Biden, the White House has worked with home-state senators on selecting nominees for those seats.

New Hampshire Democratic Sens. Maggie Hassan and Jeannie Shaheen both spoke in Delaney’s favor at Wednesday’s hearing, with Shaheen referencing the support Delaney has received from former Republican Sen. Kelly Ayotte, who was New Hampshire state attorney general when he was the deputy attorney general. Alexander Prout said his family had raised their concerns about Delaney to the New Hampshire Democrats and to the administration during the vetting process last year.

“I think we’re just extremely disappointed that we’ve reached this point,” Prout said.

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CNN’s Manu Raju contributed to this story.