President Biden has nominated longtime union lawyer Nicole Berner to a seat on the U.S. Court of Appeals for the 4th Circuit, ending a lengthy stalemate over the position between the White House and the Senate.
Berner serves as general counsel to the Service Employees International Union, which represents about 2 million workers. She previously worked as a staff attorney at Planned Parenthood Federation of America.
“She’s diverse in several different ways. Not only is she an accomplished workers rights attorney, but she’s a mom, she’s an LGBTQ woman, she is Jewish,” Randi Weingarten, president of the American Federation of Teachers, said during an interview before the nomination was announced. She advocated for Berner in a letter to Sen. Ben Cardin (D-Md.) and Sen. Chris Van Hollen (D-Md.) early last year, saying Berner would be the first openly gay judge on the 4th Circuit and its only judge with a labor background.
The open seat on the 4th Circuit was vacated in September 2022 by Judge Diana Gribbon Motz, a Clinton appointee, who took senior status. Once one of the most conservative appeals courts in the country, after the Obama administration the 4th Circuit has become one of the most liberal, issuing landmark decisions on transgender rights and gun restrictions. The 4th Circuit covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Cardin said in a statement after meeting with the nominee recently that he “was pleased to hear that she intends, if confirmed, to have her judicial chambers in the Baltimore Courthouse to better be a part of the diverse and vibrant Maryland legal community.” Cardin, who retires next year, is a third-generation Baltimorean who advocates for his hometown in the Senate. Berner lives in Takoma Park near the District.
Progressives have been advocating for Berner for many months, but disagreements and delays between the White House and Senate drew out the process, according to people familiar with the situation who spoke on the condition of anonymity to speak frankly about internal deliberations.
“It’s just taken a long time to get to this day we don’t know why it took so long,” said Jody Rabhan, the chief police officer for the National Council of Jewish Women. “We have been championing Nicole Berner since December 2021” and “it’s been a long time coming.”
The seat remained vacant amid the discord between the White House and Senate. The White House nominates judicial candidates, who must be then confirmed by the Senate. By tradition, senators can block disfavored nominees from their home state by using a “blue slip.” Sue Walitsky, a spokeswoman for Cardin, said, “Nicole Berner was one of multiple candidates that the senators recommended to the White House. It is a lengthy and complicated process.”
A White House spokesman called the senators “excellent partners in working to fill all of the judicial vacancies that have arisen in their state.”
Manny Pastreich, president of the SEIU Local 32BJ, said he knows of only two appellate judges in the country with labor experience. Pointing to Supreme Court decisions that restrict the organizing power of unions, he said, “Having the worker voice in the courts is incredibly important for the future of this country.”
Berner graduated with a law degree and a master’s in public policy from the University of California at Berkeley. She went on to clerk for Judge Betty Fletcher on the U.S. Court of Appeals for the 9th Circuit and Thelton Henderson, a California district judge who before taking the bench was the first Black attorney for the Civil Rights Division of the Justice Department.
While representing the SEIU, Berner marshaled legal support for the Supreme Court to uphold the Affordable Care Act and strike down the federal same-sex marriage ban. She was also part of an effort in the 9th Circuit opposing President Donald Trump’s attempt to end legal protections for immigrants who came to the United States as children.
“Throughout her career, Nicole Berner has provided outstanding legal representation to advance the rights of working families and historically underrepresented communities, demonstrating her commitment to delivering equal justice to all,” Van Hollen said in a statement.
Berner serves on the board of Jobs with Justice and the National Partnership for Women and Families and is active in Jews United for Justice, which advocates for progressive causes in Washington and Maryland. She and her ex-wife, both dual Israeli-American citizens, successfully sued the Israeli government in 2000 to become the first same-sex couple recognized by the country as the mothers of a child.
“The case is considered one of the most important LGBTQ rights decisions of the Supreme Court of Israel,” the the National Council of Jewish Women said, adding that “nominating a proud Jewish woman at a time when antisemitism is rapidly surging sends a strong message of support.”