But Delaney also has a smudge on his resume that is now causing turmoil at his confirmation. The looming controversy raises the question of whether an incident of a respected attorney acting on behalf of a client should nullify his nomination.
It’s about Delaney’s defense of the elite St. Paul’s School in a civil lawsuit arising out of the 2014 sexual assault of Chessy Prout, then 15, by an 18-year-old senior, Owen Labrie, at the Concord, NH facility.
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Delaney, then in private practice, filed a controversial motion against Prout’s request to remain anonymous if the case went to trial, a move the Prout family and advocates for sexual assault survivors said should see a settlement by the force family.
The move infuriated Chessy Prout and prompted her to go public. She has since become an advocate for sexual assault survivors, including writing a book about her experience.
Her father, Alex Prout, said the family was stunned to learn through contacts in New Hampshire last spring that Delaney was being considered for the nomination.
Alex Prout said they immediately began contacting officials to voice their strong objections, including in calls with Justice Department officials to review potential candidates and in a joint Zoom call with staffers from the New Hampshire Senators, Jeanne Shaheen and Maggie Hassan who would recommend candidates to President Biden.
“Michael Delaney, as Justice of the First Circuit Court of Appeals, was outside the scope of anything we would consider,” Alex Prout said. “When the conference call wrapped, I just let them know that if it’s decided that this nomination goes ahead . . . We will speak out loud against it.”
As the summer of 2022 came and went with no nomination announcement, Alex Prout assumed the senators and White House had moved on to another candidate. Then, on Jan. 18, Biden announced Delaney’s nomination, followed by a joint statement from Shaheen and Hassan calling him “extremely qualified.” Ayotte supported his nomination, as did dozens of officials in New Hampshire and across the country, including law enforcement officials and advocates for victims’ rights.
Outraged, the Prouts – as promised – launched a public campaign to stop his confirmation.
“If Michael Delaney is confirmed — if an attorney who brazenly intimidated a child sexual assault victim is granted special privilege to serve as a judge for the United States Court of Appeals — YOU are telling the victims and survivors that you are not the victim only condoning intimidation tactics reward their enactors with one of the highest legal appointments in the state of Massachusetts,” Chessy Prout wrote in a letter to members of the Senate Judiciary Committee, a copy of which was sent to Biden and Vice President Kamala Harris.
Prout also voiced her objection in a Globe opinion piece. Her parents wrote an op-ed for an Asheville, NC publication and attended Delaney’s confirmation hearing.
Her campaign reached Senate Republicans, who took up the controversy. Minority leader Mitch McConnell spoke in the Senate last month to reject Delaney’s nomination, a day after several Republicans scathingly questioned Delaney about his actions in the St. Paul case during his Feb. 15 confirmation hearing.
“To me, this is something that disqualifies your background,” Senator Marsha Blackburn, a Republican from Tennessee, told Delaney. “Actions like this send a frightening message to young women in this country and I find it unacceptable and will not vote for your nomination.”
Delaney struggled to defend his actions in the 2016 civil lawsuit, which ended in a settlement. The Prouts have also accused Delaney of tampering with witnesses in the criminal case, which he denies.
Delaney, then an attorney at law firm McLane Middleton, told senators he represented his client, St. Paul’s School, and denied that the motion was intended to intimidate Chessy Prout, adding that the confidential settlement prevented him from to discuss some aspects of the case .
“I’ve tried to represent the interests of the victims in everything I’ve done through my work as attorney general and as a frontline prosecutor,” he said. “I would like to ask this committee to consider the entirety of my records spanning almost 30 years when reviewing my qualifications.”
Several Committee Republicans have joined Blackburn in declaring their opposition. Others are undecided.
“I was very inclined to support him because of Kelly Ayotte, but I don’t know,” said Senator Lindsey Graham of South Carolina, the committee’s top Republican. Graham said he was not impressed with Delaney’s performance at his confirmation hearing.
The White House said Biden remains committed to Delaney’s nomination, as do Shaheen and Hassan, who are working to persuade their peers that he should be confirmed.
“Chessy Prout deserves a lot of credit for her continued advocacy for the victims,” Shaheen told the Globe. “I don’t agree with everything she says in this case. . . and that’s why it’s important to look at Mike Delaney’s overall record and the good work he’s done over many years.”
Many Judiciary Committee Democrats have not yet been sold. Only Sen. Mazie Hirono of Hawaii has said a resounding yes, although several committee Democrats said they weren’t focused on the nomination and that no vote is planned. The panel’s chair, Illinois-based Dick Durbin, said Tuesday that he was still looking at Delaney’s records. And Sen. Richard Blumenthal of Connecticut said he has unspecified concerns and wants to review Delaney’s responses to written questions submitted by committee members after the hearing.
But it is politically difficult for the Democrats to oppose a Biden election because of their narrow Senate majority. It would also mean derailing a candidate heavily supported by Shaheen and Hassan. Delaney was among “a number of candidates” they put forward to Biden, but the choice was his, Hassan spokeswoman Laura Epstein said.
The political dynamic was evident in the response to Globe questions about Delaney from Rep. Anne Kuster, a New Hampshire Democrat. Kuster, herself a sexual assault survivor, not only wrote the introduction to Chessy Prout’s 2018 memoir, but also guest-starred Prout on the 2018 State of the Union address.
“We have an epidemic of sexual assault in our country and we need to make sure the survivors are believed and protected,” Kuster said in a written statement to the Globe. When asked about Delaney by a Globe reporter in the Capitol on Tuesday, Kuster said, “I think the statement will stand on its own.”
St. Paul’s civil trial followed a high-profile 2015 criminal trial in which Chessy Prout remained anonymous. Labrie was acquitted of rape charges but convicted of sexual assault and child endangerment. The attack was part of a campus competition called “Senior Salute” in which graduate students competed to have sex with younger classmates.
After Labrie’s conviction, the Prouts sued the school, saying the attack was a “direct result of [St. Paul’s] to encourage, allow and condone a tradition of ritualized legal rape.”
Several victims’ rights advocates have written to the committee supporting Delaney, who received the highest rating from the American Bar Association.
“He has made working with sexual assault and victims of sexual assault a priority,” said Kristie Palestino McKenney, the former director of the Granite State Children’s Alliance, who wrote a letter of support. She said the idea that he would pressure a young sexual assault victim to give up her anonymity was “just not, not Mike Delaney.”
But Kenyora Parham, executive director of End Rape On Campus, which works to end campus sexual violence and support survivors, said Delaney’s involvement in a legal tactic used by other schools in such cases should see him expelled Disqualify from office as a federal judge.
“Maybe once upon a time. We do not know it. But once [is] too many,” said Parham, who wrote to the committee to reject Delaney’s nomination and has encouraged sexual assault survivors to reach out to their senators. “It’s the same as a sexual assault survivor being assaulted. That’s one too many.”
Jim Puzzanghera can be reached at [email protected] Follow him on Twitter: @JimPuzzanghera.
