Embattled appeals court nominee withdraws

By Lesley Clark | 05/18/2023 04:38 PM EDT

Michael Delaney, a nominee with ties to a group that fought climate regulations, lacked the votes to be confirmed.

Michael Delaney speaks.

Michael Delaney withdrew Thursday as a nominee to the 1st U.S. Circuit Court of Appeals. Jim Cole/AP Photo

One of President Joe Biden’s appeals court nominees is withdrawing from Senate consideration following opposition from both Democrats and Republicans.

Michael Delaney generated concern among climate advocates for his ties to a nonprofit law firm that sided with business interests in a number of climate change-related cases.

Delaney’s nomination to the 1st U.S. Circuit Court of Appeals had withered for months after Republicans expressed opposition because his work representing a school in a sexual assault case.


The Senate Judiciary Committee was supposed to vote on Delaney on Thursday morning but yanked him off the agenda.

“The simple fact is he doesn’t have the votes to be confirmed,” Sen. Richard Blumenthal (D-Conn.) said after the markup.

Sen. Sheldon Whitehouse (D-R.I.), who also sits on Judiciary, said pulling the nomination was “the White House’s decision and I’m not gonna quarrel with them.”

Later on Thursday, POLITICO obtained a copy of Delaney’s letter to the White House officially taking himself out of contention.

“At this time, I believe it is appropriate for me to withdraw my name from consideration for this position to advance the important work of the federal judiciary,” he said.

Climate controversy

Delaney has long been an embattled nominee, and his prospects got even more uncertain after POLITICO revealed in recent weeks his work with the Boston-based New England Legal Foundation.

The nonprofit sided with coal companies and Republican-led states in their successful challenge last year to the Biden administration’s authority to regulate greenhouse gas emissions.

According to his Senate questionnaire, Delaney has been a member of the group since 2018. He also served on its legal review committee, which vets the friend of the court briefs.

Those have included briefs opposing New Hampshire’s clean water regulation and California’s policy to allow union organizers to enter commercial farms.

‘Not ready for prime time’

Democrats had hoped California Democratic Sen. Dianne Feinstein’s return to Washington would pave the way for Delaney’s confirmation, but it seemingly did not.

Sen. Cory Booker (D-N.J.), a member of the Senate Judiciary Committee, told E&E News two weeks ago that he had concerns about Delaney’s membership on the foundation.

Republicans on the committee railed against Delaney even though committee chair Sen. Dick Durbin (D-Ill.) did not mention him.

Sen. Lindsey Graham (R-S.C.) said he was inclined to support the former New Hampshire attorney general after hearing positive reviews from New Hampshire Republicans but that Delaney’s February appearance before the committee demonstrated he “was not ready for prime time.”

Graham added that a coalition of eight progressive groups that “don’t mean that much to me” had come out in opposition to Delaney.

The groups, including the American Economic Liberties Project and Demand Progress, said in a letter to the committee that Delaney’s record “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.”

Democrats had earlier raised questions about Delaney, who as deputy attorney general in New Hampshire, signed a legal brief defending an abortion restriction in the state.

Delaney said he had “extremely limited involvement” in the 2005 brief, which defended a since-repealed state law requiring parental notification.

Biden nominated Delaney for the appeals court in January with the staunch support of New Hampshire Sens. Jeanne Shaheen and Maggie Hassan, both Democrats.

Reporters Kelsey Brugger and Pamela King contributed.