Metro Weekly

Senate Confirms Out Lesbian to 4th Circuit Court of Appeals

With Nicole Berner's confirmation, President Biden ties Obama’s record for appointing the most LGBTQ federal judges in history.

The U.S. Senate has confirmed Nicole Berner to the 4th U.S. Circuit Court of Appeals by a 50-47 vote, with all Republicans and Democratic Sen. Joe Manchin (W.V.) voting against her nomination.

Berner’s confirmation makes her the first out lesbian confirmed to the 4th Circuit — which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina — and only the sixth LGBTQ judge confirmed to any appeals court in the country. 

It also makes her the eleventh LGBTQ federal judge nominated by President Joe Biden, who ties a record with President Obama for appointing the most LGBTQ federal judges in history.

Sen. Ben Cardin (D-Md.) praised Berner’s nomination and the historic nature of it.

“A more diverse bench will better reflect the population that the judges serve as well as better inform judicial decision-making,” Cardin said on the Senate floor prior to the March 19 vote.

Berner, who lives with her family in Takoma Park, Maryland, has a law degree and master’s in public policy from the University of California at Berkeley. From 2004 to 2006, she worked as a staff attorney at Planned Parenthood. She later joined the Service Employees International Union, working as in-house counsel, eventually being named general counsel in 2017.

At the SEIU, she litigated numerous cases involving worker safety, benefits, greater hourly wages, and organizing efforts, many of which were ultimately argued before the Supreme Court.

She also represented the union in broader policy fights, filing briefs calling for the overturn of the Defense of Marriage Act, supporting the Affordable Care Act, supporting same-sex marriage, and challenging former President Donald Trump’s immigration restrictions, including his push to end the Deferred Action for Childhood Arrivals program.

In 2000, while living in Israel as a dual American-Israeli citizen, she and her then-wife Ruti Kadish prevailed in a landmark civil rights case before the Israeli Supreme Court, in which they successfully challenged the refusal by Israel’s Ministry of the Interior to register their son with two mothers, as well as its refusal recognize her second-parent adoption.

Republicans expressed their opposition to Berner, attacking her for statements she made, while working for the SEIU, which opposed religious exemptions to nondiscrimination legislation and the nomination of Supreme Court Justice Brett Kavanaugh. Adding to Republicans’ ire was the fact that her current wife, Debra Katz, represented the woman who accused Kavanaugh of sexually assaulting her in high school.

But LGBTQ and civil rights groups were elated, praising the Senate’s confirmation of Berner.

Ms. Berner is a brilliant lawyer who has defended and advanced our civil and human rights, including the rights of working people, reproductive rights, and the rights of LGBTQ people,” Maya Wiley, the president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement.  “Her commitment to equal justice is evidenced throughout her life and legal career, and we look forward to her service on the bench.”

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