U.S. Senator Ben Cardin

Letters From Ben

March 23, 2024

Confirming History

Dear Fellow Marylanders,

As a senator and Member of Congress, the most consequential decisions I have ever made were related to whether to approve sending brave American men and women to war. Inherently, lives are at risk, so it’s not a decision anyone takes lightly.

Second to this is another constitutional duty, “advice and consent” of lifetime judicial appointments. Article III, section 2, clause 2 of the Constitution gives us the power to confirm federal judges. The Constitution envisions that senators will use independent judgment to make these decisions.

This week, I was incredibly proud – as a senator and as a Marylander – to cast my vote on the floor of the United States Senate to confirm Maryland attorney Nicole Berner as the newest U.S. Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit.  

This is a crucial appointment. For most federal cases, the U.S. Court of Appeals is the final decisionmaker. A very small percentages of the cases reach the Supreme Court of the United States. This leaves the Court of Appeals responsible for upholding and interpreting most of our laws in our country.

Think of recent headlines about reproductive rights, voting rights, public services, education, immigration and more, to understand what a pivotal role judges have in the day-to-day lives of Americans nationwide.

Along with Senator Chris Van Hollen, I was pleased to recommend Ms. Berner to President Joe Biden as a potential judicial nominee to fill the vacancy created when Judge Diana Gribbon Motz took senior status in late 2022. After a thorough vetting process by the White House, she was officially nominated in November of last year. The Senate Judiciary Committee favorably reported Ms. Berner’s nomination this January.

Judge Berner – she was almost immediately sworn in and started receiving cases – has been fighting for civil rights and worker rights throughout her career, and I am excited to have her bring this experience and deep knowledge of the law to the federal bench. She has told me that she plans to have judicial chambers in the Baltimore Courthouse to better be a part of the diverse and vibrant Maryland legal community.

Prior to her confirmation, Judge Berner served as General Counsel to the 2-million-member strong Service Employees International Union (SEIU). She also has served as a staff attorney for Planned Parenthood Federation of America, worked as a litigation associate at Jenner & Block in Washington, D.C., and worked as a visiting attorney at Yigal Arnon & Co. in Jerusalem, Israel.

Judge Berner brings an immense track record of fighting for working families, including many low-wage service and health care workers. In this role she has excelled in a broad range of legal skills, including litigation, negotiation, arbitration, advocacy before regulatory bodies, union governance. She has provided detailed and complex legal advice on policy issues and legislation at the state and federal levels. She has filed numerous amicus curiae briefs at the Supreme Court as well as at the circuit and district court level. 

Judge Berner is one of the many superbly qualified women President Biden has appointed as federal judges. In fact, nearly two-thirds of the 188 federal judges appointed by President Biden are women and about the same number are members of a racial or ethnic minority group.

Judge Berner brings to the bench both her vast as experience as a union counsel and appellate lawyer, and her own personal advocacy as a Jewish woman on so many civil rights issues. She also is the first openly LGBTQ judge in the history of the Fourth Circuit. Judge Berner lives in Montgomery County with her wife and family.

Our Founding Fathers may not have recognized women as equal participants in society – and probably never imagined women as judges – but thankfully, we as a nation have learned valuable lessons since 1788 when our Constitution was first ratified. We are still learning and perfecting the American experiment, but we know today, through experience, that a diverse judiciary that follows the rule of law and encourages free access to the courts for all individuals is essential to a thriving democracy.

Thank you for your time. Please feel free to reply to this email with your thoughts on this historic confirmation, or any other topic. I appreciate all the feedback we receive.


Ben Cardin