Senate Confirms Union Attorney to US Appeals Court in Virginia

The Senate confirmed Nicole Berner as a federal appellate judge, elevating a union attorney who has spent her career championing liberal causes.

Berner was confirmed 50-47 on Tuesday to the US Court of Appeals for the Fourth Circuit, which covers North and South Carolina, Maryland, Virginia, and West Virginia. She will be the first openly LGBTQ judge on the Fourth Circuit.

Berner spent the past seven years as general counsel for the Service Employees International Union, a 2 million-member labor group that represents a variety of service and health care workers.

Her November 2023 nomination by President Joe Biden was praised by progressives and union leaders, who have complained the federal bench has too few judges with prior experience representing workers.

“Ms. Berner is extraordinarily well-qualified and will bring perspectives that are under-represented to the federal bench,” leaders of the SEIU and four other large unions said in a statement at the time of her nomination.

She co-wrote briefs to the US Supreme Court that took direct aim at former President Donald Trump’s Muslim travel ban and his administration’s decision to end the Deferred Action for Childhood Arrivals program.

She also participated in an SEIU brief in 2020 in support of the Affordable Care Act, saying that a reversal would pose a “real-world threat that they pose to millions of Americans’ health, economic security, and lives.”

Berner has been involved in high-stakes cases involving same-sex couples—including her own. She took part in a brief opposing a conservative baker in Colorado who refused to make same-sex wedding cakes, only to have the high court rule the other way in 2018.

That came nearly two decades after Berner and her then-wife were plaintiffs in a landmark Israeli supreme court case that guaranteed same-sex parentage rights.

“We’re what’s known as white-picket-fence lesbians, or whatever the Israeli equivalent would be,” Berner, an Israeli citizen, told the New York Times in 2000. “We’re like perfect poster children for alternative families.”

Berner, who was born in the UK in 1965, attended the University of California, Berkeley for college and law school. She worked as an associate at Jenner & Block and as a staff attorney for the Planned Parent Federation of America before joining the SEIU as an associate general counsel in 2006.

Berner was steeped in the Fight for $15 campaign, an SEIU-backed campaign that sought to organize fast-food workers and raise local minimum wages. She also worked to extend the union’s reach to childcare and home care workers, who historically have not been unionized.

Her nomination attracted criticism from Senate Republicans. She faced questions at her confirmation hearing on past comments she had made about Right-to-Work laws and the confirmation of US Supreme Court Justice Brett Kavanaugh. They also questioned her handling of sexual assault allegations as SEIU general counsel.

Union supporters praised Biden’s pick, noting that few labor attorneys had received judicial nods. The unusual nature of federal labor law—governed by the quasi-judicial National Labor Relations Board—can make it difficult for judges to try cases without previous experience, they say.