Feinstein's Return Not Enough for Confirmation of Controversial New Hampshire Judicial Nominee

89-year-old California senator arrived hour late to Judiciary Committee hearing to advance President Biden's stalled nominations

Senators and aides applaud Sen. Dianne Feinstein (D., Calif.) upon her return to the Senate / Getty Images
May 11, 2023

Democrats jammed three of President Joe Biden's controversial court nominees through committee votes on Thursday thanks to a last-minute appearance by 89-year-old Democratic senator Dianne Feinstein (Calif.), who showed up over an hour late after a months-long medical absence. But Feinstein's vote was not enough to bring Michael Delaney, the controversial judicial nominee to the First Circuit Court of Appeals, over the finish line, a signal that Democrats are having second thoughts about confirming a judge who has stoked opposition from the party's left wing.

Feinstein's appearance at the Senate Judiciary Committee meeting was a major question mark on Thursday morning, with committee chairman Dick Durbin (D., Ill.) noting at the top of the meeting that he was waiting for Feinstein's arrival to move forward with votes on the long-stalled judicial nominees.

"I know [Feinstein has] been through some significant health challenges, and we all wish her the very best," he said. "I intend to call [judicial nominee votes] shortly, and if Senator Feinstein arrives, we may be able to take up those additional nominees very quickly."

Even after Feinstein's arrival, Durbin only brought up three of the seven nominees on the agenda, opting against a vote on Delaney's nomination—an indication that Democrats don't have the votes to advance him even with Feinstein in attendance. Delaney, who has been stuck in the confirmation process longer than any other of Biden's judicial nominees, was on the top of the meeting's agenda list but was not brought up by Durbin.

"Seems clear they have bigger problems on Delaney than Feinstein," a senior Senate staffer told the Washington Free Beacon.

Delaney has come under fire for his handling of an underage sexual assault case. As an attorney representing an elite private school, Delaney publicly identified a 15-year-old sexual assault victim who was suing the academy for negligence. As the attorney general of New Hampshire, he also declined to prosecute the largest Ponzi scheme case in New Hampshire history, the Free Beacon reported.

Three nominees were approved by the committee in party-line votes, with Feinstein casting the deciding vote for each. They included Eastern District of Washington pick Charnelle Bjelkengren, who during her confirmation hearings couldn't identify Article II or V of the U.S. Constitution; Colorado district court nominee Kato Crews, who struggled with a basic question of criminal law; and California district court nominee Marian Gaston, who has argued for repealing laws that block sex offenders from living near schools.

Durbin moved to the nominations just after Feinstein's arrival. The senator received a standing ovation as a staffer assisted her to her seat.

Sen. Ted Cruz (R., Texas) said he was "glad to welcome our colleague Senator Feinstein back to this committee" but indicated that her return meant the committee was about to push through "several nominees who are so extreme, who are so unqualified, that they could not have a prayer of getting even a single Republican vote on this committee."

Cruz said that Bjelkengren was the "least-qualified nominee I've seen in 11 years serving on this committee" and that her self-selected list of the most consequential cases she litigated included just drivers' license revocations and unemployment benefits.

The Texas senator also slammed Gaston as "moonbat crazy," noting that she argued against laws that restricted where sex offenders could live.

But the approved nominees won unanimous support from Democrats, something Delaney appears unable to attain.