LGBTQ lawyer confirmed to Richmond appeals court
Berner will be 4th Circuit’s first openly gay judge
The U.S. Senate voted 50-47 on Tuesday to approve the nomination of Maryland labor lawyer Nicole G. Berner to the Richmond-based 4th U.S. Circuit Court of Appeals, making her the first openly LGBTQ+ judge on that court.
The vote was expected to be close. Her nomination had been approved 11-10 on a party-line vote by the Judiciary Committee in January.
As they did in their voting Tuesday, Republicans rallied against her, citing, among other things, a union brief she signed in 2017 against a Colorado baker who refused to make a wedding cake for a same-sex couple.
Democrats on Tuesday cited her backing by major labor unions and dozens of civil rights and workers’ rights advocacy groups.
Sen. Chris Van Hollen, a Maryland Democrat, during a floor speech called Berner “a highly experienced litigator” and said her confirmation “would mark a significant milestone for the 4th Circuit.”
Van Hollen and fellow Democrat Ben Cardin, the state’s senior senator,
recommended the appointment of Berner. Cardin on Tuesday called
“an extraordinarily qualified candidate.” President Joe Biden nominated her in November.
Berner, who is general counsel to the Service Employees International Union, will fill a slot open because Diana Gribbon Motz stepped down in 2022 to become a senior judge, meaning she has a limited caseload. The 15-member 4th Circuit and hears appeals from federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.
Berner will be the third openly LGBTQ+ woman to serve on any of the nation’s federal appellate courts, said Maya Wiley, president and
CEO of the Leadership Conference on Civil and Human Rights, an advocacy organization.
“Her confirmation adds crucial lived experience to the court and sends a powerful signal to young LGBTQ lawyers, law students, and other potential future judges that they belong on the federal bench. That matters,” Wiley said in a prepared statement on Tuesday.
“It’s incredibly historic,” said University of Richmond law professor Carl Tobias. “We’re in the capital of the Confederacy down here. She is a very qualified, experienced person.”
Berner’s work includes acting as counsel for the SEIU’s amicus brief before the U.S. Supreme Court defending the Affordable Care Act, the health care law known as “Obamacare,” in 2018. She served as a staff attorney for Planned Parenthood from 2004-06.
Republicans opposed her appointment in the committee, citing the 2017 union brief siding against the Colorado baker and referencing a statement she made in 2018 that the “right-to-work” movement is racist “at its core.”
Right-to-work laws in some states prevent unions from mandating that all workers of a company pay dues.
In written responses to committee questions in December, Berner said she made the statement to the American Constitution Society in 2018 in her capacity as the union’s general counsel, and that her speech was framed around “the history of the right-to-work movement” rather than the present day. A judge’s responsibility, she said in her responses, is to apply precedent to facts “without regard to prior representation or personal opinions. I understand that the role of a judge is a very different role than the role of an advocate.”
Democrats hold a 51-49 Senate majority, meaning Democratic senators can afford only one defection if all the Republicans are present and oppose a nominee.