After the withdrawal of their first nominee to fill the final vacancy on the First Circuit, former New Hampshire Attorney General Michael Delaney, the Biden Administration is trying again with federal prosecutor Seth Aframe.

Background

Born in Boston, Massachusetts in 1974, Seth Robert Aframe received a bachelor’s degree summa cum laude from Tufts University in 1996 and then received a J.D. from Georgetown University in 1999. Aframe then clerked for Justice Judith Cowin on the Massachusetts Supreme Judicial Court before joining Choate Hall & Stewart in Boston as an Associate.

In 2003, Aframe moved to New Hampshire to clerk for Judge Jeffrey Howard on the U.S. Court of Appeals for the First Circuit. In 2007, he became a federal prosecutor with the U.S. Attorney’s Office for the District of New Hampshire where he currently serves as Appellate chief and Chief of the Criminal Division.

History of the Seat

Upon the recommendation of New Hampshire Senators Jeanne Shaheen and Maggie Hassan, Aframe has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Jeffrey Howard took senior status on March 31, 2022. On January 18, 2023, former New Hampshire Attorney General Michael Delaney was nominated to fill this seat. However, Delaney faced bipartisan opposition based on his role in defending St. Paul’s School against a lawsuit brought by a plaintiff alleging sexual assault at the school and withdrew on May 18, 2023. Approximately a week after the withdrawal, Aframe reached out to Shaheen expressing his interest in the position. After interviewing with the senators and then with the White House in July 2023, Aframe was nominated on October 4, 2023.

Legal Experience

After a clerkship, Aframe started his career at Choate Hall & Stewart in Boston, where he worked in commercial litigation. For example, Aframe represented Lucent Technologies in defending against a disability discrimination claim brought by a former employee who was dismissed for allegedly falsifying company records. See Desando v. Lucent Technologies, 193 F. Supp. 2d 358 (D. Mass. 2002).

After an extensive stint as a law clerk at the First Circuit, Aframe joined the U.S. Attorney’s Office for the District of New Hampshire, where he has served for the last sixteen years. He started in the Civil Division of the office. Since 2010, Aframe has served as the Appellate Chief of the U.S. Attorney’s Criminal Division, in which capacity he has argued approximately 100 cases before the First Circuit, in addition to trying several cases in the District of New Hampshire. Among his trials, Aframe was lead counsel in a ten day money laundering and conspiracy trial involving a fraudulent scheme to convert fraudulent proceeds into bitcoin. See United States v. Freeman, 21-cr-41-JL (D.N.H.)

Among Aframe’s notable appeals, he successfully defended a trial verdict of guilt wherein the defendant was a physician who had received kickbacks to prescribing a fentanyl spray to his pain patients. See United States v. Clough, 978 F.3d 810 (1st Cir. 2020). The First Circuit, in affirming the verdict, found that the government need not prove an explicit connection between the fees received by the physician and the prescriptions in order to prove a conspiracy. See id. In another notable case, Aframe successfully defended a conviction under the federal cyberstalking statute against a First Amendment challenge. See United States v. Ackell, 907 F.3d 67 (1st Cir. 2018).

Outside the criminal context, Aframe successfully persuaded the First Circuit that the Department of Health and Human Services had appropriately withheld internal emails and redacted portions of manuals produced in a Freedom of Information Act request relating to the provision of a grant to Planned Parenthood. See New Hampshire Right to Life v. United States Department of Health and Human Services, 778 F.3d 43 (1st Cir. 2015).

Political Activity

Aframe has two donations to his name, one to Democratic gubernatorial candidate Colin Van Ostern, and one to Sen. Jeanne Shaheen.

Overall Assessment

If there is one lesson that the Biden Administration can take away from the loss of the Delaney nomination, it is that unexpected issues can sometimes tank otherwise qualified nominees. Aframe, like Delaney, has extensive legal experience in the New Hampshire community and is generally well-respected. However, unlike Delaney, Aframe’s confirmation hearing focused largely on issues of sentencing that are unlikely to draw Democratic opposition. As such, while Aframe, at least barring the unexpected, looks favored to join the federal bench in due course.

Former New Hampshire Attorney General Michael Delaney has built a wide variety of legal experience that equips him for a federal appellate position.

Background

Born in Danvers, Massachusetts on July 19, 1969, Michael Delaney received a bachelor’s degree in political science from the College of the Holy Cross in 1991 and then received a J.D. from Georgetown University in 1994. Delaney subsequently joined Wiggin & Nourie in Manchester, New Hampshire.

In 1999, Delaney joined the New Hampshire Attorney General’s Office, being elevated to Deputy Attorney General in 2004. In 2006, Governor John Lynch, a Democrat, chose Delaney to be his Chief of Staff.

In 2009, Delaney was confirmed to be New Hampshire Attorney General, replacing Kelly Ayotte. He held that position throughout the Lynch Administration, leaving upon the election of Maggie Hassan in 2012. Since 2012, Delaney works with the Manchester office of McLane Middleton.

History of the Seat

Upon the recommendation of New Hampshire Senators Jeanne Shaheen and Maggie Hassan, Delaney has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Jeffrey Howard took senior status on March 31, 2022.

Legal Experience

Delaney started his career at Wiggin & Nourie in Manchester, where he briefed and argued actions before the New Hampshire Supreme Court. See, e.g., Simonds v. City of Manchester, 141 N.H. 742 (1997). See also Mason v. Smith, 140 N.H. 696 (1996). He subsequently shifted to the New Hampshire Attorney General’s office, where he rose to become Senior Assistant Attorney General and Chief of the Homicide Division. As Assistant Attorney General, Delaney continued to argue before the New Hampshire Supreme Court. See, e.g., State v. Almodovar, 145 N.H. 541 (2000).

In 2006, Delaney became chief counsel for Governor John Lynch, a role which he held until he was appointed to be Attorney General.

From 2009 to 2012, Delaney served as the Attorney General of New Hampshire, an appointed position. In this role, Delaney:

• Spoke out in favor of the death penalty in New Hampshire. See Kevin Landrigan, New Hampshire Commission Examines Costs to Carry Out Capital Punishment, The Nashua Telegraph, Dec. 5, 2009.
• Supported a comprehensive plan to cut New Hampshire’s rate of prison recidivism, which included increased funding for treatment. See Kevin Landrigan, New Hampshire Panel Backs Plan to Reduce Prison’s Revolving Door, The Nashua Telegraph, Feb. 9, 2010. The plan was signed into law by Lynch. Kevin Landrigan, Lynch Inks Sweeping Jail Reform Bill, The Nashua Telegraph, July 1, 2010.
• Opposed expanded gambling in New Hampshire. See Kevin Landrigan, Governor Cites Casino Concerns, The Nashua Telegraph, Mar. 26, 2010.
• Secured a $60,000 settlement after a 2009 oil spill on the Souhegan river. See Kathy Cleveland, 2 Oil Firms to Pay $60K to ‘09 Spill, The Nashua Telegraph, Feb. 9, 2010.
• Fought efforts by the Republican state legislature to force his office to challenge the Affordable Care Act in court. See Kevin Landrigan, Legislative Lawyers, AG Before Court, The Nashua Telegraph, May 24, 2011. The New Hampshire Supreme Court sided with Delaney and indicated that he did not need to join the lawsuit.
• Criticized “stand your ground” laws, arguing that they can lead to greater citizen harm. See Kevin Landrigan, No-Retreat Law Under Scrutiny, The Nashua Telegraph, Apr. 3, 2012.

Since 2013, Delaney has been in private practice. In this role, he was hired to conduct an independent review of Keene State College’s investigation and termination of Gino Vallante, who was accused of making sexually explicit remarks to members of the basketball team. See Meghan Foley, D.C. Lawyer Retained Plans to Investigate Keene State, New England College, The Keene Sentinel, N.H., May 8, 2014. Delaney’s report found a pattern of sexual harassment. Law Firm Report Sheds Some Light of Keene State Coaches’ Dismissals, The Keene Sentinel, N.H., Mar. 27, 2015.

Writings

While working as a Senior Assistant Attorney General, Delaney authored an article discussing a prosecutor’s ethical obligations when making media statements in relation to homicide prosecutions. See Michael A. Delaney, Attorney General Article: Public Comments from the Criminal Bureau: Navigating the Uncharted Waters of Professional Conduct Rule 3.6, 45 N.H.B.J. 49 (Spring 2004). In the article, Delaney notes that prosecutors are held to a higher standard as other attorneys with relation to trial publicity, given their roles as “ministers of justice.” See id. at *51.

Political Activity

Delaney has an extensive history of giving to New Hampshire Democrats, including Shaheen, Hassan, Lynch, and Rep. Chris Pappas.

Overall Assessment

Throughout his career, Delaney has developed expertise in both criminal and civil law, and is well-respected in the New Hampshire legal community. As such, he should be a relatively uncontroversial selection for the First Circuit.

One of the foremost advocates for legal protections for a woman’s right to choose, Julie Rikelman, has been tapped for an appellate seat on the First Circuit.

Background

A native of the Ukraine, Rikelman was born in Kyiv in 1972 and immigrated to the United States in 1979. Rikelman attended Harvard College, getting her B.A. in 1993 and then her J.D. from Harvard Law School in 1997. Rikelman then clerked for Justice Dana Fabe on the Alaska Supreme Court and then for Judge Morton Ira Greenberg on the U.S. Court of Appeals for the Third Circuit.

After her clerkships, Rikelman joined the Center for Reproductive Rights as a Blackmun Fellow. After her fellowship, she joined Feldman & Orlansky in Anchorage. In 2006, Rikelman returned to New York to join Simpson Thatcher & Bartlett and after two years there, she joined the litigation team at NBC Universal.

In 2011, Rikelman became senior litigation director for the Center for Reproductive Rights, where she currently serves.

History of the Seat

Rikelman has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Sandra Lea Lynch announced her desire to take senior status upon the confirmation of a successor.

Legal Experience

Outside her clerkships, Rikelman started her legal career as a fellow at the Center for Reproductive Rights. During her fellowship, Rikelman represented Victoria, who sued Terrebonne Parish for failure to obtain a timely abortion while she was incarcerated. See Victoria W. v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002). Rikelman also notably assisted Priscilla J. Smith in successfully overturning a state hospital’s taking of mandatory drug tests from pregnant women as a violation of the Fourth Amendment. See Ferguson v. City of Charleston, 532 U.S. 67 (2001).

After her fellowship, Rikelman shifted to Anchorage where she represented Friends of Mark Begich, who was running for Mayor of Anchorage, in a suit challenging ballot placement in the election. See DeNardo v. Municipality of Anchorage, 105 P.3d 136 (Alas. 2005). Rikelman then shifted to New York where she represented NBC employees sued by Doug Copp for allegedly defamatory statements they made about him. See Copp v. Ramirez, 62 A.D.3d 23 (N.Y. App. Div. 2009).

Since 2011, Rikelman has worked on abortion rights litigation at the Center for Reproductive Rights. Among her notable cases, she has handled the following:

• A First Amendment challenge to informed consent provisions for abortion in Texas. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).
• A First Amendment challenge to North Carolina laws requiring pregnant women to be informed about the state’s preference for childbirth over abortion. Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014).
• A Fourteenth Amendment challenge to restrictions on reproductive medications in Arizona. See Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014).
• A challenge to a Mississippi requirement that abortion clinics have “admitting privileges” with local hospitals as an “undue burden” to the right to choose. Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014).
• A First Amendment challenge to a North Carolina law requiring that physicians perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions. Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).
• A challenge to North Carolina’s 20-week abortion ban. Bryant v. Woodall, 306 F. Supp. 3d 611 (M.D.N.C. 2019).
• A challenge to South Carolina’s exclusion of Planned Parenthood from Medicaid providers. Planned Parenthood S. Atl. v. Baker, 941 F.3d 687 (4th Cir. 2019).

Most notably, Rikelman argued two notable abortion cases before the U.S. Supreme Court. In 2019, Rikelman argued that the Constitution prohibited a Louisiana law requiring abortion providers to have admitting privileges in local hospitals. See June Medical Servs. LLC v. Russo, 591 U.S. __ (2020). The Supreme Court, in a 5-4 vote, agreed and reversed a judgment in favor of the state. See id. Two years later, Rikelman argued that the Court should not overturn Roe v. Wade. The Court, however, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, overturned Roe v. Wade. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).

Writings

In her role at the Center for Reproductive Rights, Rikelman has frequently spoken out on abortion rights. For example, in 2017, Rikelman was a panelist on a Woman’s Reproductive Rights panel at Rutgers University. See Panel Five: Women’s Reproductive Rights and Health: Beijing+20, 38 Women’s Rights L. Rep. 304 (Spring/Summer 2017). In her remarks, Rikelman criticized abortion restrictions being passed across the country for limiting “access to safe and legal abortion.” See id. at 305.

Rikelman has also frequently commenting in opposition to abortion restrictions in the media and in favor of decisions protecting abortion rights. For example, she praised a decision by Judge B. Lynn Winmill to strike down Idaho’s “fetal pain” bill, noting: “Today’s ruling has overturned a legislative assault by politicians who seek to interfere with [a woman’s] decision and deny women this fundamental right.” See Rebecca Boone, Idaho First State to Have Fetal Pain Law Rejected, A.P. Online, Mar. 8, 2013 (quoting Julie Rikelman). Similarly, Rikelman criticized Mississippi restrictions requiring abortion clinics to have “admission privileges,” stating: “There’s no medical justification; states should not be able to restrict a constitutional right based on pretext.” See Sophie Novack, Mississippi’s Only Abortion Clinic Will Remain Open, National Journal, July 29, 2014 (quoting Julie Rikelman).

Outside the abortion context, Rikelman authored a law review article discussing appellate decisions permitting mandatory blood collection for DNA testing under the Fourth Amendment, arguing that such mandatory collection was prohibited by the Constitution. See Julie Rikelman, Justifying Forcible DNA Testing Schemes Under the Special Needs Exception to the Fourth Amendment: A Dangerous Precedent, 59 Baylor L. Rev. 41 (Winter 2007).

Overall Assessment

Out of all of Biden’s appellate nominees, Rikelman is likely one of the most controversial. This is not necessarily based on concerns about her qualifications, intellect, or temperament. However, Rikelman has spent the last decade working in one of the most contentious legal issues in today’s environment: abortion rights. As such, Rikelman’s nomination will likely turn on whether she can retain support from all fifty Senate Democrats. While she is still (slightly) favored to get confirmed, it is possible that the senate calendar may claim Rikelman’s nomination as a casualty.