Joe Biden’s Judicial Nominees Fail To Measure Up

One Nominee Stripped A Teenage Sexual Assault Victim Of Her Privacy, Another Can’t Answer Rudimentary Questions About The Constitution, And A Third Is Obsessed With Microaggressions And Seems Interested In Weakening Free Speech Protections


SENATE REPUBLICAN LEADER MITCH McCONNELL (R-KY): “[Recently] President Biden and the Senate Democratic Leader took time to boast about their judicial confirmations. There was something interesting, strange, and telling about their statements. Both the President and the Democratic Leader focused their comments overwhelmingly on identity politics and demographic box-checking. The President’s statement spent literally one part of one sentence paying lip service to the question of legal qualifications. The remaining five paragraphs were devoted solely to these new judges’ demographic characteristics…. [W]hen these Democrats talk about our sacred American legal system, they sound like the H.R. department at some liberal university. The White House statement singled out three judges by name. In all three cases, the President belabored some aspect of the judge’s identity. In zero of the three cases did the President have anything to say about their knowledge, intellect, or professional distinction. It’s offensive to all Americans to have a President seeming to view our judiciary as some kind of crude sociological math problem. This is just the kind of thing our Constitution cuts against.” (Sen. McConnell, Remarks, 2/15/2023)

  • LEADER McCONNELL: “When Republicans held the presidency and the Senate, we spent four years confirming staggeringly qualified and incredibly brilliant men and women to the courts, from widely diverse professional and educational credentials. Back then, even the very liberal outlet Vox.com reported, ‘Based solely on objective legal credentials’ — objective legal credentials — ‘the average… appointee has a far more impressive resume than any past president’s nominees.’ That was then. These days, things are different.” (Sen. McConnell, Remarks, 2/15/2023)


Michael Delaney, President Biden’s Nominee To The 1st Circuit, Stripped A Minor Victim Of Sexual Assault Of Her Privacy And Anonymity, Subjecting Her To Harassment And Threats

“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. … 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.” (“Biden Appeals Court Nominee Faces Questions For Role In School Sexual Assault Case,” CNN, 2/16/2023)

“When Chessy Prout sued the St. Paul’s School in New Hampshire for negligence after she was sexually assaulted in her freshman year, her attorneys made a simple request: that, as a minor facing death threats from fellow students and alumni, she remain anonymous during the course of the lawsuit. The attorney representing the $62,000-a-year boarding school, Michael Delaney, opposed that motion and overnight, the 15-year-old Prout became a public figure.” (“‘Utter Silence’: Biden Judicial Nominee Pushed To Unmask a Sexual Assault Victim’s Identity. Her Parents Want To Know Why Democrats Won’t Speak Out Against Him., Washington Free Beacon, 2/27/2023)

The Victim Wrote A Letter To Senators And An Op-Ed Opposing Delaney’s Nomination Because Of His Handling Of Her Case: ‘Because Of His Actions, I Lost The Privilege Of Privacy’

CHESSY PROUT: “In the next two weeks, the US Senate will make a decision regarding the Biden administration’s nomination of Michael A. Delaney to the US Court of Appeals for the First Circuit. Before the Senate Judiciary Committee Hearing last week, I was compelled to send a letter stating why Delaney should not be considered for a lifetime appointment as a judge. I spoke with White House counsel weeks ago to inform them of my experiences with Delaney. When his nomination was announced, I felt defeated. It seems the White House heard my concerns and deemed them unimportant. Delaney represented St. Paul’s School in Concord, N.H., in a lawsuit my family filed against the school after I was sexually assaulted by another student in a ritual called the ‘Senior Salute.’ In an attempt to intimidate me, Delaney filed a motion to strip me, then 16, of my anonymity if my supporters continued to make public statements about the case. Instead, I came forward with my name and story.” (Chessy Prout, Op-Ed, “I Know Michael Delaney. After What He Did, He Doesn’t Deserve To Be A Judge.,” Boston Globe, 2/23/2023)

  • CHESSY PROUT: “Yet because of his actions, I lost the privilege of privacy. Before I came forward, my name appeared on websites that exist to out and threaten sexual assault survivors. My family’s home address, phone numbers, and pictures of my parents, sisters, and friends stolen from my private Instagram were posted to these hate sites. Anonymous commenters posted death threats and pictures of our home. They used racial slurs against my half-Japanese Dad and threatened to show me ‘what real rape looks like when [I] get to college.’ They used our family e-mail address in Craigslist ads for sex acts. This was the result of my loss of privacy. This is what Delaney felt was ‘fair’ to expose me and my family to when filing a motion to strip my anonymity.” (Chessy Prout, Op-Ed, “I Know Michael Delaney. After What He Did, He Doesn’t Deserve To Be A Judge.,” Boston Globe, 2/23/2023)

The Victim’s Family Characterized Delaney’s As Actions A ‘Veiled Threat’ And Called On The White House ‘To Do The Courageous Thing And Withdraw This Nomination’

“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.’’” (“Biden Appeals Court Nominee Faces Questions For Role In School Sexual Assault Case,” CNN, 2/16/2023)

“‘This is a time to do the courageous thing and withdraw this nomination,’ Alex Prout told the Washington Free Beacon. Sitting alongside his wife, Susan, Alex Prout says that Delaney—having pushed successfully to unmask the identity of his daughter in a civil lawsuit surrounding the elite boarding school’s culpability for her sexual assault at the hands of an 18-year-old high-school senior—does not belong on the federal bench. ‘Mr. Delaney, you do not deserve to be in this position,’ Alex Prout said. ‘You've chosen the path that you wanted to take to make money off of survivors of sexual assault and defend these institutions.’” (“‘Utter Silence’: Biden Judicial Nominee Pushed To Unmask a Sexual Assault Victim’s Identity. Her Parents Want To Know Why Democrats Won’t Speak Out Against Him., Washington Free Beacon, 2/27/2023)

Senate Republicans Found Delaney’s Handling Of The Sexual Assault Case ‘Disqualifying’ And ‘A Chilling Message To Young Women’

LEADER McCONNELL: “This time, the President wants a lifetime appointment for a New Hampshire attorney who represented an ultra-elite private high school against a 15-year-old girl who was suing the school after she’d been sexually assaulted on campus. Now, lawyers serve unpopular clients all the time. But while representing the powerful prep school, Michael Delaney subjected the teenage victim and her family to unusually aggressive hardball tactics that were frankly shocking. … Mr. Delaney fought the girl’s desire for privacy and anonymity. He used it as a weapon against her. He said he’d only let the girl remain anonymous if she were subjected to a gag order about the incident. And he threatened that if the family refused to settle on terms favorable to the school, and went to trial, he’d ask the court to reveal her name. In other words, Mr. Delaney tried to turn a teenage victim’s privacy into a hostage to help a prep school avoid accountability. … I urge the President to reconsider this nomination and I urge my colleagues to reject it.” (Sen. McConnell, Remarks, 2/16/2023)

SEN. MARSHA BLACKBURN (R-TN), Senate Judiciary Committee Member: “You know, words have meaning. We look at words. We also look at actions. And last night as I read this, I was taken aback that you would have thought a minor child who had been sexually assaulted did not deserve protection. I think it is chilling the message this sends to young women. You would stand up and you would defend St. Paul's, and you would defend senior salute, and you would defend those actions, but you would not defend a 15-year-old girl and protect her anonymity. And to me this is something that is disqualifying in your background. ... And actions like this send a chilling message to young women in this country. And I find it unacceptable. And I will not be voting for your nomination.” (U.S. Senate Judiciary Committee Hearing, 2/15/2023)

SEN. JOSH HAWLEY (R-MO), Senate Judiciary Committee Member: “You told the court that it should happen because you didn't like the time at which her counsel filed their complaint, because it put your school at an inconvenience. They had to answer reporter questions, you said? Frankly, that seems to me like a small burden to bear after what Chessy went through. So you made the decision, you forced her to come forward. She was brave and did it, and now you're accountable for that. And quite frankly, I'm astounded you've been nominated. I can't believe we're sitting here having this conversation today. And I for one will not support your nomination for these reasons. People who put sexual assault victims through this kind of torture shouldn't sit on the bench.” (U.S. Senate Judiciary Committee Hearing, 2/15/2023)

Even Senate Democrats Know That Delaney ‘Has Real Problems’ That The White House Didn’t Fully Think Through

SEN. DICK DURBIN (D-IL), Senate Judiciary Committee Chairman: “It was a pretty rough hearing, no question… We’re going to take a closer look at his record.” (“Biden Appeals Court Nominee Faces Questions For Role In School Sexual Assault Case,” CNN, 2/16/2023)

“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. … 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.” (“Biden Appeals Court Nominee Faces Questions For Role In School Sexual Assault Case,” CNN, 2/16/2023)

But Biden Continues To Support Delaney

“The White House told CNN on Wednesday after the hearing that Delaney continues to have its support.” (“Biden Appeals Court Nominee Faces Questions For Role In School Sexual Assault Case,” CNN, 2/16/2023)


One Biden Nominee For A Washington State District Court Could Not Explain Elementary Facts About The Constitution

SEN. JOHN KENNEDY (R-LA): “Judge on the far end. Tell me what Article Five of the Constitution does.”
JUDGE CHARNELLE BJELKENGREN: “Article Five is not coming to mind at the moment.”
SEN. KENNEDY: “Okay, how about Article Two?”
JUDGE BJELKENGREN: “Neither is Article Two.”
SEN. KENNEDY: “Okay. Do you know what purposivism is?”
JUDGE BJELKENGREN: “In my twelve years as an assistant attorney general, and my nine years serving as a judge, I was not faced with that precise question. We are the highest trial court in Washington State, so I'm frequently faced with issues that I'm not familiar with and I thoroughly review the law. I research and apply the law to the facts presented to me.”
SEN. KENNEDY: “Well, you’re gonna be faced with it if you're confirmed. I can assure you of that.” (U.S. Senate Judiciary Committee Hearing, 1/25/2023)

LEADER McCONNELL: “[O]ur colleague on the Judiciary Committee from Louisiana, Senator Kennedy, was quizzing a panel of President Biden’s nominees. He decided to try some very simple questions that should have been beyond basic for anybody nominated to serve as a United States District Judge. He asked one nominee, currently a Superior Court Judge in Spokane County, Washington, to simply explain what Article V of our Constitution says. That would be the article that explains how the Constitution gets amended. Here was the nominee’s response, Mr. President. ‘Article V is not coming to mind at the moment.’ Senator Kennedy came back with something even more basic. He asked: ‘How about Article II?’ As high-schoolers across America learn each year, Article II sets up the presidency and the executive branch. It establishes the President’s powers — including the power to nominate this person for the vacancy in question! But this sitting judge drew another blank. Article II wasn’t coming to mind either. Goodness gracious.” (Sen. McConnell, Remarks, 1/31/2023)

  • LEADER McCONNELL: “Is this the caliber of legal expert with which President Biden is filling the federal bench? For lifetime appointments? Is the bar for merit and excellence really set this low? For years, now, Washington Democrats’ rhetoric around judicial nominations has often treated actual qualifications as an afterthought. Democrats were not particularly impressed or moved by the top-shelf professional excellence or the academic brilliance that the last Republican Administration’s nominees possessed in spades. And apparently they don’t count those qualities as particularly high priorities now that they’re the ones doing the nominating. The American people deserve an impartial judiciary that is full of the finest legal minds our country has on offer. The American people deserve the best and brightest.” (Sen. McConnell, Remarks, 1/31/2023)


Meanwhile, A Biden Nominee For The 2nd Circuit ‘Is A Longtime Diversity Trainer’ Who ‘Conducted Training Sessions That Suggest “Microaggressions” Can “Kill You”’ And Wrote That Current 1st Amendment Law Allows People To ‘Viciously Verbally Assault Certain Oppressed Groups’

“President Joe Biden’s nominee to fill a vacancy on the Second Circuit Court of Appeals is a longtime diversity trainer who criticized the ‘discriminatory effects’ of First Amendment law and conducted training sessions that suggest ‘microaggressions’ can ‘kill you.’ Now an associate justice on the Connecticut State Supreme Court, Maria Araujo Kahn lamented in a 2020 opinion that current legal precedents permit ‘verbal assaults’ on ‘oppressed groups.’” (“Biden Judicial Nom Suggested ‘Microaggressions’ Can ‘Kill You,’” The Washington Free Beacon, 2/24/2023)

  • “Since 2013, she has also delivered at least a dozen diversity trainings and presentations to lawyers across the country, with titles like ‘Cultural Competence, Implicit Association and Racial Anxiety,’ according to her Senate Judiciary Questionnaire. To prepare for one of those trainings, offered to graduates of Fordham Law School, participants were instructed to watch an animated video, ‘How Microaggressions Are Like Mosquito Bites,’ that depicts a man-sized mosquito telling a dark-hued college student to ‘try a less challenging major’ and then sucking him dry. ‘Some mosquitoes carry truly threatening diseases that can mess up your life for years,’ a voice-over says. ‘And other mosquitos carry strains that can even kill you.’ The video then cuts to a mosquito holding a gun next to a dead body. ‘I felt threatened,’ the insect tells officers at the scene of the crime. ‘It looked like he was up to trouble, ok?’” (“Biden Judicial Nom Suggested ‘Microaggressions’ Can ‘Kill You,’” The Washington Free Beacon, 2/24/2023)
  • JUSTICE MARIA ARAUJO KAHN: “The overarching result is that groups of people that, for example, are stereotyped as docile due to their gender or ethnicity, or who have physical limitations due to their age or disability that prevent them from responding violently—the precise groups that face persistent discrimination—must endure a higher level of offensive speech ... From the speaker's perspective, such a result allows him or her to more readily and viciously verbally assault certain oppressed groups without fear of criminal prosecution.” (State of Connecticut v. David G. Liebenguth, Kahn, J., Concurring, 8/27/2020)



Related Issues: Nominations, Judicial Nominations