News Article

Labor lawyer becomes first openly gay judge to join 4th Circuit
March 19, 2024


By: Rachel Weiner

With her confirmation by the Senate on Tuesday, Nicole Berner became the first openly gay judge and the first labor lawyer on the U.S. Court of Appeals for the 4th Circuit, a court covering the Mid-Atlantic that over the past decade has gone from one of the most conservative to one of the most liberal in the country.

Berner, who previously worked as general counsel for the Service Employees International Union (SEIU) and a lawyer for Planned Parenthood, was confirmed in a 50-47 vote. She was opposed by all voting Republicans and one Democrat: Joe Manchin III of West Virginia.

The 4th Circuit covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. “A more diverse bench will better reflect the population that the judges serve as well as better inform judicial decision-making,” Sen. Ben Cardin (D-Md.) said on the Senate floor before the vote.

There are only two other lesbian federal appellate judges in the country, and only a handful of federal judges from the labor movement. “We need to keep up this momentum, because although a supermajority of Americans support unions, way too many judges in this country are advancing corporate interests while chipping away at much-needed worker protections,” said Manny Pastreich, president of the SEIU affiliate 32BJ representing workers on the East Coast.

Berner, who lives with her family in Takoma Park, Md.,has a law degree and a master’s in public policy from the University of California at Berkeley. At the SEIU, Berner litigated numerous cases involving worker safety, benefits and organizing abilities, several of which went to the Supreme Court. She also represented the union in broader policy fights. She was involved in Supreme Court briefs challenging President Donald Trump’s immigration restrictions, saying that many of the workers represented by the union and their families would be in danger of deportation or unable to travel freely under his orders. She likewise threw the union’s weight behind litigation supporting same-sex marriage and the Affordable Care Act.

Before joining the SEIU, Berner was a staff attorney for Planned Parenthood. Among other cases, she litigated access to the abortion drug mifepristone, an issue currently before the Supreme Court, and against abortion restrictions in Missouri. In 2000, while living in Israel, she sued the government and won the right for same-sex couples to both be recognized as parents of their children.

Former solicitor general Donald B. Verrilli Jr. said he has known Berner since hiring her two decades ago at the law firm Jenner & Block, where she worked before joining Planned Parenthood. “She will be a superb judge — open-minded, fair, and analytically rigorous,” he said.

Republicans focused on Berner’s professional background during a hearing on her nomination in December. They attacked her for statements she made while at the SEIU opposing “right to work” laws that bar contracts making all employees of a company union members, religious exemptions to anti-discrimination legislation, and the nomination to the Supreme Court of Justice Brett M. Kavanaugh. (Berner’s wife, attorney Debra Katz, represented the woman who accused Kavanaugh of sexually assaulting her in high school.)

Republicans also criticized Berner for not helping a woman who accused her bosses at an SEIU affiliate in California of sexual harassment. Berner said that as general counsel for the national SEIU, she had no authority to intervene. She said repeatedly during the confirmation hearing that, in moving from representing clients to judging cases, she would follow the precedents set by the Supreme Court, which has in recent years undone the constitutional right to abortion and weakened labor protections.

“I believe Justice Kavanaugh, just like every other justice of the Supreme Court, was legitimately confirmed, and were I to be confirmed, I would follow his opinions and the opinions of every justice,” she said. “The role of a judge is a very different role than that of an advocate.”

Three Republican senators were not present, saving Democrats from having to call in Vice President Harris to break a tie as they did on an earlier procedural vote on the nomination.

Peter Romer-Friedman, a civil rights attorney who often represents workers in discrimination cases, said even under current Supreme Court rulings a judge with labor experience is beneficial. Often appeals courts are reviewing rulings that denied individuals the right to bring a lawsuit.

“In my experience, lawyers who have represented ordinary Americans — whether that’s in workers’ rights cases or personal injury cases — are more likely to make sure ordinary people aren’t going to have the courthouse door slammed in their faces,” he said. “They understand what it means for those folks to be looking for justice.”