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Nicole Berner, Longtime Union Lawyer, Confirmed As Federal Judge

WASHINGTON — The Senate voted Tuesday to confirm Nicole Berner as a federal judge, putting the longtime union lawyer and former Planned Parenthood litigator into a lifetime seat on the U.S. Court of Appeals for the 4th Circuit.

The final vote was 50 to 47. No Republicans voted for her — not even the two who identify as pro-choice, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska. One Democrat voted no: Sen. Joe Manchin of West Virginia.

Berner is general counsel for Service Employees International Union, the labor union that represents nearly 2 million workers. She’s worked in some legal capacity for SEIU since 2006. She was also previously a staff attorney for Planned Parenthood from 2004 to 2006.

The 59-year-old is also a partner at the D.C.-based law firm James & Hoffman.

Berner’s work at SEIU has included filing amicus briefs in Supreme Court cases that protected the Affordable Care Act, overturned the Defense of Marriage Act and, later, led to full marriage equality. She was the lead attorney on a 2018 amicus brief opposing a Donald Trump administration effort to end the Deferred Action for Childhood Arrivals program, and has been part of the Fight for $15 campaign to raise local and state minimum wages.

During her time at Planned Parenthood, she litigated cases aimed at protecting medication abortion in Ohio, defending young people’s access to abortion in Missouri and increasing women’s abortion access in New Mexico.

Berner’s confirmation is a big win for progressives. At least one progressive judicial advocacy group, Demand Justice, previously proposed her as a Supreme Court nominee for President Joe Biden.

Her confirmation is also a victory for anyone who cares about making the nation’s federal judges more diverse and representative of the communities they serve — something that Biden has prioritized with his court picks. Berner will be the third-ever openly lesbian judge to serve on a U.S. appeals court. The other two are Judge Beth Robinson and Judge Alison Nathan, both of whom are on the U.S. Court of Appeals for the 2nd Circuit and both of whom were also appointed by Biden.

Nicole Berner testifies during her Senate Judiciary Committee nomination hearing in December 2023.
Nicole Berner testifies during her Senate Judiciary Committee nomination hearing in December 2023. C-SPAN

Carl Tobias, a University of Richmond law professor and judicial nominations expert, said that Berner’s confirmation is significant for a number of reasons.

Not only will she be “one of a minuscule number of federal judges who practiced employee-side labor law,” he said, but her confirmation reflects an ongoing shift in her particular court’s ideological balance.

“As recently as 2005 or so, [this court] was considered the most ideologically conservative appeals court in the nation,” said Tobias. “Indeed, the court has become more centrist and even progressive on certain issues, thanks substantially to George W. Bush’s inability to fill several vacancies on the court in 2007-2008, after Democrats won a Senate majority in 2006, and [Barack] Obama’s ability to fill the openings with rather progressive appointees.”

Of the 15 authorized judges on the U.S. Court of Appeals for the 4th Circuit, nine were appointed by Democratic presidents. Berner is replacing another Democrat-appointed judge, Diana Gribbon Motz, who assumed senior status and scaled back her duties in September 2022.

Beyond that, Berner’s background with Planned Parenthood matters because this court has jurisdiction over some states with restrictive abortion laws.

Any appeals of federal lawsuits relating to abortion rights in North Carolina, South Carolina or West Virginia will end up before the court that Berner now sits on. Each of these states has varying degrees of restrictions, if not outright bans, on access to abortion. If Berner is randomly assigned to any these potential cases, she brings the expertise of someone familiar with legal fights over women’s reproductive rights.

On more personal matters, Berner is a dual American Israeli citizen. When she lived in Israel, she fought for years and ultimately won a case before Israel’s Supreme Court that changed the country’s law to require the government to recognize two moms as the full parents of a child.

She wasn’t just the attorney in that case ― she was the litigant.

“That ruling is considered one of the most important LGBTQ rights decisions in Israeli history,” Sen. Chris Van Hollen (D-Md.), who recommended Berner to the White House, said in her confirmation hearing in December.

According to Van Hollen, Berner said that case taught her “how humbling and terrifying it is to be a litigant defending the most important thing she has.”