Confirm Maryland’s Berner to 4th Circuit bench
When the United States Senate convenes today, it should promptly confirm Maryland attorney Nicole Berner to the U.S. Court of Appeals for the 4th Circuit, which includes Maryland, Virginia, North Carolina, South Carolina and West Virginia. Last week, the upper chamber agreed to end debate on her confirmation.
Berner, who was nominated by President Joe Biden on Nov. 27, is extremely intelligent, ethical, experienced and independent. From 2000 to 2004, she was a litigation associate at Jenner & Block, based in Washington, D.C. From 2004 until 2006, Berner was a Planned Parenthood staff attorney in D.C. In 2006, she became in-house counsel for the Service Employees International Union, and in 2017, the union named Berner its general counsel.
The court vacancy opened in December
2021 when Circuit Judge Diana Gribbon Motz announced her intent to assume senior status after a quarter century of dedicated service, and she took senior status on Sept. 30, 2022. Maryland Democratic Sens. Ben Cardin and Chris Van Hollen expeditiously instituted a process to suggest accomplished, mainstream candidates for Biden’s consideration. The senators rather swiftly pursued, analyzed, interviewed and rated applicants, while they recommended a few highly qualified individuals to Biden, including Berner.
“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,” Sen. Van Hollen said in a statement. “Her diverse legal experience shows that she is dedicated to the rule of law, fairness, and the principles of democracy, which is why I enthusiastically support her nomination to serve the American people on the Fourth Circuit. As the first openly LGBTQ nominee for the Fourth Circuit Court of Appeals, Nicole would also break glass ceilings in our judicial system. We look forward to advancing her nomination through the Senate.”
Added Sen. Cardin: “Nicole Berner has been fighting for civil rights and worker rights throughout her career, and we are excited to have her bring this experience and deep knowledge of the law to the federal bench in Maryland. As the general counsel of the 2-million-member strong Service Employees International Union (SEIU), Ms. Berner oversees their legal work in complicated areas of the law, including labor, health care regulation and immigration. With this background, I am confident that she will uphold the judicial oath to ‘do equal right to the poor and to the rich. I also appreciated the opportunity to meet with Ms. Berner recently and 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.”
Berner earned a well-qualified rating, which is the highest possible, from the American
Bar Association Standing Committee on the Federal Judiciary, and put her many laudable qualities, including a balanced temperament, on display when she testified in a Dec. 13, 2023 Judiciary Committee hearing, where most panel members seemed pleased with her comprehensive and clear responses.
However, a few GOP members grilled Berner about her views on numerous issues. For example, two senators accused Berner of not helping a local affiliate employee, who claimed that an affiliate leader had harassed her. Berner testified that her client was the international union and that she only became involved with local affiliates when they requested her help. Arkansas Sen.Tom Cotton also contended that Berner had accused supporters of right-to-work laws of being racist. The nominee answered that she was speaking historically. Others questioned Berner about her opposition to Justice Brett Kavanaugh’s appointment, while the nominee responded that she would carefully follow all Supreme Court precedents, especially Justice Kavanaugh’s rulings. On Jan. 18, the committee approved Berner on an 11-10, party-line vote, and the majority seemed convinced that she is a well-qualified, centrist nominee.
Other ideas suggest why the chamber must promptly confirm Berner. First, Judge Motz’s vacancy has effectively remained unfilled over 17 months, even though the respected jurist had dutifully accorded Biden much notice that she would become a senior judge. Second, requiring that candidates and nominees wait prolonged times for nomination and confirmation can mean that they must leave careers and lives on hold, although Berner’s candidacy progressed rather smoothly after her late 2023 nomination. Third, Berner’s confirmation is historic, because she will be the first LGBTQ individual to serve as a 4th Circuit judge. Diversity in terms of gender, ideology and experience improves judicial decision-making by affording different perspectives, limits prejudices that can undercut the federal justice system, and bolsters public confidence in a judiciary whose members reflect U.S. society. Berner will also be one of very few federal judges who has practiced employee-side labor law.
Nicole Berner’s strong record means that she warrants prompt confirmation, and the nominee’s significant qualifications will enable the court to continue speedily, economically and fairly resolving massive appeals.