Meet Biden's most controversial judicial nominees stalled in Senate because of Feinstein's absence

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Senate GOP blocks Democrats from replacing Feinstein on committee

Sen. John Kennedy, R-La., joined "America's Newsroom" to discuss the significance of Sen. Feinstein's absence amid the push to confirm Biden's judicial nominees.

The fate of President Joe Biden’s most controversial judicial nominees rests on Sen. Dianne Feinstein’s role on the Senate Judiciary Committee.

Several judicial nominations are pending. If Republicans don't agree to allow the Democrat majority to change the rules to allow another Democrat to temporarily fill Feinstein’s committee slot, the nominees will not go to a final floor vote in the Senate. That is because without Feinstein, the committee is split 9-9.

This has prompted Rep. Alexandria Ocasio-Cortez, D-N.Y., to join other Democrats in calling for Feinstein to step down from her Senate seat, concerned about federal judgeships. She joins other progressive Democrats such as Rep. Ro Khanna, D-Calif., and Rep. Rashida Tlaib, D-Mich., in trying to push the 89-year senator out.

"Her refusal to either retire or show up is causing great harm to the judiciary – precisely where repro rights are getting stripped," Ocasio-Cortez said in reference to abortion during an interview with BlueSky. "That failure means now in this precious window Dems can only pass GOP-approved nominees."

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Biden nominated Michael Delaney, a former Democrat attorney general from New Hampshire, to serve on the U.S. First Circuit Court of Appeals. The First Circuit covers Massachusetts, Maine, New Hampshire, Rhode Island and Puerto Rico.

Michael Delaney, a Biden administration nominee to serve on a First Circuit court, was grilled by GOP senators during a Senate Judiciary Committee hearing on Feb. 15, 2023. (Fox News / screenshot)

The most contentious issue surrounding Delaney’s work as a private lawyer comes in a 2014 case in which he defended St. Paul’s School, a private prep school in Concord, New Hampshire, in a case against Owen Lambrie, when he was an 18-year-old accused of raping then-15-year-old Chessy Prout.

During Delaney’s confirmation hearing, Republican senators brought up that Delaney filed a motion to require Prout, a minor at the time, to be publicly named.

Delaney responded at his hearing that he filed the motion in the context of negotiations between lawyers about Prout’s anonymity and said it was not "in any way intended to intimidate any of the parties to the case." Delaney eventually withdrew the motion to name the minor during the 2014 case.

Prout submitted a letter to the Senate Judiciary Committee.

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"I remember so clearly reading Michael Delaney's motion from front to back when I came home from my new high school one day, processing what it meant," the letter says. "And then defiantly stating to my parents that after everything I've been dragged through from anonymous death and rape threats on the internet, to the betrayal of and backlash of my closest friends. I wasn't gonna let Michael Delaney’s dirty tactics bully me – then 16 years old – into shame and silence."

Senate Republicans should stand firm to block the worst of the nominees off the federal bench, said Michael Thielen, executive director of the Republican National Lawyers Association.

Senate Judiciary Committee ranking member Sen. Dianne Feinstein, D-Calif., speaks to the media on Oct. 22, 2020, at the Capitol. (AP Photo / J. Scott Applewhite)

"Even zealous advocacy has boundaries. Michael Delaney's attempting to out an alleged rape victim’s name definitely crosses those lines," Thielen told Fox News Digital. "It is even more important for a judge to be measured."

In the case of Delaney, Feinstein’s role might be diminished as at least three Democrats on the Judiciary Committee expressed reservations about his nomination.

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That’s not the case with others.

Biden nominated Natasha Merle for a judgeship for the U.S. District Court for the Eastern District of New York. Merle said in a 2017 episode of "The Breach" podcast that proposals for voter ID and a border wall were based on White supremacy.

"You know, it’s inconsistent to denounce White supremacy but not repudiate voter ID laws, to not repudiate the Muslim ban, to not repudiate the wall," Merle said. "These are all things that support and are grounded in White supremacy. The voter ID bills disproportionately impact Black and brown voters."

Sizable majorities across demographics consistently support voter ID laws, Thielen noted.

"Natasha Merle’s views comparing voter ID to White supremacy would be news to the majority of Black Americans who now support voter ID, including Assistant Democrat House Leader James Clyburn," Thielen said. "Such rhetoric serves no other purpose than to inflame and proves she lacks judicial temperament."

Other nominees have engaged in racial rhetoric.

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Biden nominated Nusrat Jahan Choudhury to be a judge for the same district for which Merle was nominated.

Choudhury said the criminal justice system is "premised on structural inequality" during her 2018 remarks at the University of Chicago Harris School of Public Policy. She added, "I see my work as hoping to transform the system."

Nusrat Jahan Choudhury appears before a Senate Judiciary Committee hearing for her nomination to the bench in the U.S. District Court for the Eastern District of New York on April 27, 2022. (Rod Lamkey / CNP / Sipa USA)

Biden’s nominee for the Eleventh Circuit Court of Appeals is Nancy Abudu, a former strategic litigation director for the Southern Poverty Law Center after working for the American Civil Liberties Union. The Eleventh Circuit covers Alabama, Florida and Georgia. 

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Abudu wrote in 2020, "When you add laws that prohibit people with a criminal conviction from voting, it’s practically the same system as during slavery – Black people who have lost their freedom and cannot vote."

Republicans have criticized two other Biden judicial nominees for not understanding basic legal terms. These were Kato Crews, nominated to serve on the U.S. District Court for the District of Colorado, and Charnelle Bjelkengren, nominated to the U.S. District Court for the Eastern District of Washington.