The Senate recently confirmed Nicole Berner, former general counsel for the Service Employees International Union (SEIU), as a federal appellate judge. Renowned for her representation of liberal causes during her career, Berner will be joining the US Court of Appeals for the Fourth Circuit, a jurisdiction that incorporates North and South Carolina, Maryland, Virginia, and West Virginia. Significantly, Berner will be the first openly LGBTQ judge serving on the Fourth Circuit.
With President Joe Biden’s nomination and a final Senate approval of 50-47 votes, Berner brings seven years of experience as SEIU’s general counsel to the bench. During her time with the union, Berner represented numerous service and healthcare workers among the union’s 2 million members. Her nomination was highly praised by progressives and union leaders, who believe that there are too few judges with experience in representing workers on the federal bench.Bloomberg Law highlighted union leaders’ remarks about Berner at the time of her nomination, stating, “Ms. Berner is extraordinarily well-qualified and will bring perspectives that are under-represented to the federal bench.”
Berner made her mark by co-writing briefs to the US Supreme Court that contested former President Donald Trump’s Muslim travel ban and his decision to terminate the Deferred Action for Childhood Arrivals program. She also contributed to an SEIU brief in 2020 defending the Affordable Care Act. Furthermore, Berner has had experience with high-stakes cases involving same-sex couples, including a landmark Israeli Supreme Court case that established same-sex parentage rights.
Despite facing criticisms from Senate Republicans for her previous comments on Right-to-Work laws and US Supreme Court Justice Brett Kavanaugh’s confirmation, union supporters lauded Biden’s selection of Berner. They noted the rarity of nominations for labor attorneys and emphasized the unique knowledge required to navigate labor law.