Yesterday’s Senate Judiciary Committee hearing did not go well for Michael Delaney, President Biden’s nominee to the U.S. Court of Appeals for the First Circuit. Delaney was repeatedly pressed by Republican senators over his role in pushing to publicly name an underage female victim of sexual assault while representing a prep school in Concord, New Hampshire, in a case he litigated.
The freshman student, Chessy Prout, was allegedly raped by a senior, Owen Labrie, who was engaging in a sick custom known as the “senior salute” in which upperclassmen preyed on younger students. Labrie was convicted of misdemeanor sexual assault and endangering the welfare of a child. The Prout family sued the prep school, St. Paul’s, alleging that the school had failed to curb a pervasive environment of sexual abuse.
Chessy Prout had initially been identified as Jane Doe, but Delaney argued on behalf of the school that she should remain anonymous only if her family would not speak to the press about the case. The family did not muzzle themselves, and Delaney asked the court to lift the victim’s anonymity at trial. As reported by the Boston Globe, her father, Alex Prout, said that this motion “wasn’t a legal tactic,” but “a threat.” Both he and the victim’s mother attended Delaney’s nomination hearing.
By Chessy Prout’s own account, summarized in a letter submitted to the Senate Judiciary Committee, after “reading Michael Delaney’s motion front to back when I came home from my new high school one day, processing what it meant,” she decided to shed her anonymity. “I wasn’t going to let Michael Delaney’s dirty tactics bully me, then 16, into shame and silence.”
When asked about his tactic on behalf of the school, the nominee dug himself into a deeper hole by repeatedly stating that the school agreed to anonymity, which was evasive to the point of deception. Senator Ted Cruz confronted him with his “false answer” by reading from the court record Delaney’s motion to lift anonymity, plain as day, stating “the school shall be entitled to identify plaintiffs and JD during discovery. Plaintiffs and JD should not be allowed to proceed under pseudonyms at the trial of the matter.”
The Senate hearing was lopsided, with most Republicans questioning the nominee while only the committee chairman, Senator Richard Durbin, and Senator Mazie Hirono showed up to ask questions from the Democratic side. Cruz pointed out, “There’s a reason why virtually every Democrat has skipped this hearing. They’re embarrassed about this nomination.”
The Republican ranking member, Senator Lindsey Graham, could have been confused for a Democrat on the committee. His round of questioning, following that of the chairman at the beginning, emphasized that Delaney was highly recommended by former U.S. Senator Kelly Ayotte and noted letters that came to the committee in his support. Perplexingly, his comments sounded like a preemptive attempt to rehabilitate Delaney in anticipation of the pointed questions that would follow from his fellow Republicans. It’s hard to understand how Senator Graham could support this nominee.
Senator Josh Hawley, for his part, joined other Republicans in calling the nominee out on his evasiveness and exclaimed, “I’m astounded you’ve been nominated. . . . People who put sexual assault victims through this kind of torture shouldn’t sit on the bench.”
Senator Marsha Blackburn had a further rebuke of Delaney: “I was taken aback that you would’ve 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.”
Senator Mike Lee focused on how devoid of legal merit the nominee’s argument was: “I’m not aware of any courtroom in America where a child victim—whether still a minor at the time of the trial proceedings or not—where the victim wouldn’t be allowed freely to choose to protect her anonymity.”
We shall see if any of this moves even a single Senate Democrat not to rubber stamp this nomination.