Senate committee votes to approve Marylander to 4th US Circuit Court of Appeals, would be first openly LGBTQ+ member on that court

  • Oops!
    Something went wrong.
    Please try again later.

The U.S. Senate Judiciary Committee voted 11-10 along party lines Thursday to approve the nomination of Nicole G. Berner, a labor lawyer from Takoma Park in Montgomery County, to the federal appeals court overseeing Maryland cases.

If confirmed by the Senate, she would become the first openly LGBTQ+ judge on the 4th U.S. Circuit Court of Appeals, according to a White House release when she was appointed in November.

Berner, general counsel to the Service Employees International Union (SEIU), had been recommended for the opening by U.S. Sens. Ben Cardin and Chris Van Hollen, both Maryland Democrats. She would fill a slot open because Diana Gribbon Motz, a former Baltimore lawyer, stepped down in 2022 to become a senior judge, meaning she has a limited case load.

The 15-member 4th Circuit is based in Richmond, Virginia, and hears appeals from federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina. Among its prominent Maryland cases is one in which a three-judge panel in November found a Maryland law unconstitutional that requires residents to get a handgun qualification license before purchasing or obtaining a firearm. Gov. Wes Moore, a Democrat, has appealed the ruling to the full court, and oral argument is scheduled for March.

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 previously served as a staff attorney for Planned Parenthood from 2004 to 2006.

Committee Republicans opposed her appointment, saying Thursday that she had signed a union brief in 2017 against a Colorado baker who refused to make a wedding cake for a same-sex couple, and had said in 2018 that the “right-to-work” movement is racist “at its core.”

Republican Sen. Mike Lee, of Utah, said her right-to-work statement and others “concern me, and they don’t reflect the careful, reasoned judgment of someone with whom we should be entrusting a lifetime position as an appellate court judge.”

Right-to-work laws in some states (but not Maryland) 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.”

Berner has been the union’s general counsel for 17 years.

“For decades, Nicole Berner has represented working families and historically underrepresented communities,” Van Hollen said in a joint statement with Cardin on Thursday.

While it is not uncommon to be named to the federal bench without having been a judge, “I can’t remember anybody who did labor-side work on the 4th Circuit,” University of Richmond law professor Carl Tobias said in an interview on Thursday.

It is uncertain when Berner’s nomination will come before the full Senate. Democrats have a 51-49 majority.

“They’ll make the same arguments on the floor but I think she is virtually assured of being confirmed,” Tobias said.

In 2021, Democratic President Joe Biden’s first full year as president, the White House said in a statement that the federal bench “should reflect the full diversity of the American people — both in background and in professional experience.”

At the same time Berner was nominated, the White House also nominated appellate attorney Adeel Mangi to the Philadelphia-based 3rd U.S. Circuit Court of Appeals. Mangi was also approved 11-10 by the committee on Thursday. He would be the first Muslim judge to serve on a circuit court.