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Michael Delaney, Biden's appeals court nominee, faces rare Democratic scrutiny

FILE - New Hampshire Attorney General Michael Delaney speaks about drug abuse issues in Concord, N.H., Feb. 22, 2013. One of President Joe Biden's nominees to a federal appeals court has generated rare concern from some Democrats and outside groups over his signature on a legal brief defending a parental notification law in New Hampshire. Delaney, nominated for the 1st U.S. Circuit Court of Appeals, based in Boston, said in written testimony to senators that he did not write the 2005 brief and otherwise had “extremely limited involvement” in the case that was brought while he was deputy attorney general in New Hampshire. (AP Photo/Jim Cole, File)
Jim Cole/AP
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AP
FILE - New Hampshire Attorney General Michael Delaney speaks about drug abuse issues in Concord, N.H., Feb. 22, 2013. One of President Joe Biden's nominees to a federal appeals court has generated rare concern from some Democrats and outside groups over his signature on a legal brief defending a parental notification law in New Hampshire. Delaney, nominated for the 1st U.S. Circuit Court of Appeals, based in Boston, said in written testimony to senators that he did not write the 2005 brief and otherwise had “extremely limited involvement” in the case that was brought while he was deputy attorney general in New Hampshire. (AP Photo/Jim Cole, File)

One of President Joe Biden's nominees to a federal appeals court has generated rare concern from some Democrats and outside groups over his signature on a legal brief defending a parental notification law in New Hampshire, injecting the issue of abortion into his confirmation fight from an unexpected flank.

Michael Delaney, nominated for the 1st U.S. Circuit Court of Appeals, based in Boston, said in written testimony to senators that he did not write the 2005 brief and otherwise had "extremely limited involvement" in the case that was brought while he was deputy attorney general in New Hampshire.

But the signing of the brief, along with scrutiny of his representation of St. Paul's School, a private boarding school in New Hampshire that was sued in connection with a sexual assault, is complicating a confirmation fight in which the White House has little room for error.

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The close attention on an abortion case also shows how stakes are ever-higher in a post-Roe v. Wade world. Access to abortion could hinge on lower-level judges now that the U.S. Supreme Court has overturned the constitutional right to the procedure and advocates on both sides want near-certainty as they assess nominees. The issue helped derail one proposed Biden pick last summer when the White House decided not to nominate an anti-abortion lawyer in Kentucky following an outcry from Democrats.

Delaney's case will test how far Biden will push Democrats to support his nominees to the federal bench even after the White House set records in the number of appointments in his first two years. It will also test the power of personal persuasion in the clubby Senate, whose members can often be influenced by fellow members whose counsel they trust.

In this case, both New Hampshire Democratic senators, Jeanne Shaheen and Maggie Hassan, strongly back Delaney and are deeply respected by other senators. Both are also fierce supporters of abortion rights.

At issue is a New Hampshire law, passed in 2003 but repealed in 2007, that required minors to tell their parents before they obtained an abortion. As the state's deputy attorney general, Delaney was among those who signed a brief submitted to the U.S. Supreme Court that defended the law because it "does not present a substantial obstacle to any woman's right to choose an abortion."

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