Lesbian federal appellate bench nominee Berner faces US Senate Judiciary Committee

  • by John Ferrannini, Assistant Editor
  • Wednesday December 13, 2023
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Attorney Nicole Berner testified at her Senate Judiciary Committee hearing December 13. Photo: Screengrab
Attorney Nicole Berner testified at her Senate Judiciary Committee hearing December 13. Photo: Screengrab

The U.S. Senate Judiciary Committee heard testimony December 13 from two attorneys aspiring to become federal appellate judges — including lesbian Nicole Berner who played a major role in an Israeli Supreme Court case that ruled a child can legally have two mothers.

Republicans on the committee grilled and repeatedly cut off Berner and her fellow nominee, Adeel Mangi, though Democrats steered the questioning back to legal issues and their experiences.

President Joe Biden nominated Berner, who is currently general counsel for the Service Employees International Union, to serve on the 4th U.S. Circuit Court of Appeals, and Mangi, a partner at Patterson Belknap Webb & Tyler LLP, to serve on the 3rd Circuit. If confirmed by the Senate, Berner would be the first LGBTQ jurist to serve on the 4th Circuit, and Mangi would be the first Muslim on a federal appellate bench.

"It's important to remember these important milestones," said Senator Dick Durbin (D-Illinois), the chair of the judiciary committee. "As well as the excellent professional experience of both these nominees."

Berner was introduced by Senator Benjamin L. Cardin (D), the senior senator from her home state of Maryland. He said Berner has a "great breadth of experience."

Cardin walked through Berner's career. A graduate of UC Berkeley's Boalt Hall (now UC Berkeley Law), she was a visiting attorney at Yigal Arnon and Co., an Israeli firm, from 1999-2000, and was a litigation associate at Jenner and Block from 2000-2004. From 2004-2006, she was a staff attorney with Planned Parenthood, and since 2006 she's been with SEIU, which represents about two million workers largely across public sector and health care fields.

"She is motivated by the desire to ensure fair and equal access to the courts for all Americans, in spite of their social status or financial resources," Cardin said. "As a skilled appellate lawyer, she has organized legal strategies to bring her clients' voices to the courts and tell their story. She seeks to show how their lives will be affected by the outcome of a case."

Cardin added that Berner "also has personal experience with discrimination on the basis of sexual orientation." Berner, a dual citizen of the U.S. and Israel, played a key role in the landmark Israeli Supreme Court case Berner-Kadish v. Minister of Interior.

"That ruling is considered one of the most important LGBTQ rights decisions in Israeli history, expanding the rights of families like hers in perpetuity," said Senator Chris Van Hollen (D-Maryland). "It was also an experience that taught Ms. Berner 'how humbling and terrible it is to be a litigant defending the most important things she has.'"

In the case, Berner challenged the refusal of the Israeli Ministry of the Interior to register her as her son's second mother. In California, she'd legally adopted her son. In the case, Israel's high court ruled in favor of Berner.

In her remarks, Berner thanked Biden for the nomination.

"This nomination has been the greatest honor of my professional life and for that I am extremely grateful," she said, adding that she has devoted her career to social justice, exemplified in the Hebrew phrase "tikkun olam," or "repairing the world."

Berner noted she had family in attendance visiting from Israel, in spite of the Israel-Hamas war taking place. On October 7, Hamas terrorists went into Israel and killed 1,200 people in the worst massacre of Jews since the Holocaust. Israel responded with an extensive bombing campaign in the Gaza strip, governed by Hamas, and a ground invasion, which has led to the deaths of over 16,000 Palestinians, according to reports.

Durbin asked Berner and Mangi the opening question — whether they can, if appointed, separate their personal beliefs and past positions from the application of the law.

"I understand the role of a judge is very different from the role of an advocate," Berner said. "I saw first hand the importance of applying each case with an open mind, of studying the record of the case deeply and thoroughly."

Answered Mangi: "It is fundamentally important that litigants in the federal justice system be able to receive consistent adjudication from judges, regardless of that judge's personal beliefs or background. I set aside my personal views, my background, my beliefs."

Attorney Adeel Mangi testified at his Senate Judiciary Committee hearing December 13. Photo: Screengrab  

Mangi, who lives in Jersey City, New Jersey, is from Pakistan. He earned a law degree from Oxford, in the United Kingdom, before he came to the U.S. in 1999.

Berner paid tribute to the late jurist Sandra Day O'Connor, who became the first woman on the U.S. Supreme Court after being appointed by President Ronald Reagan in 1981. O'Connor died December 1.

"When Sandra Day O'Connor was appointed, I saw that and I thought as a woman I can do anything," Berner said. "She forged her own path, she broke glass ceilings, she maintained dignity and treated all fairly, and I know we are all thinking of her today and I would like to bring her name into this room as well."

Republicans raise objections
Republicans on the committee raised several objections to the nominations.

Senator Tom Cotton (R-Arkansas) noted that, as general counsel to the SEIU, Berner had signed on to an amicus curiae brief in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). In that case, the Supreme Court ruled that the commission violated the free exercise clause of the First Amendment when it put the principle of non-discrimination on the basis of sexual orientation ahead of a baker's right not to bake a cake for a same-sex wedding when he found doing so would violate his religious beliefs.

"You signed an amicus brief in the Masterpiece Cakeshop case, also known as the 'bake the cake, bigot' case, in which a man in Colorado who had a cake shop didn't want to bake a cake for a gay marriage," Cotton said. "The Supreme Court ruled in his favor. Let me ask you if Hamas radicals went into a cake shop, say a Jewish bakery, and [wanted] a cake saying 'From the [Jordan] River to the [Mediterranean] Sea, Palestine will be free,' with a dagger through the Star of David ... would a Jewish baker be compelled to bake a cake?"

Berner answered, "The Supreme Court did not rule along the lines advocated by my client," but that "I would, of course, apply that Supreme Court precedent, like every other Supreme Court precedent."

Answered Cotton: "I guess if confirmed, we'll have to see if Hamas radicals can have such a cake baked."

Mangi was criticized for his work as part of an advisory council for Rutgers Law School's Center for Security, Race and Rights. GOP senators repeatedly asked him to condemn the Hamas attacks against Israel.

"The events of October 7 were horrific, a horror," Mangi said. "The attacks on civilians were abominable and against everything that I stand for. I have no patience for any attempts to justify those attacks on civilians."

But Mangi would not take positions beyond that, including on whether Israel is a "settler-colonial" state.

"I will condemn without equivocation any terrorism, any terrorist, any act of terrorism," Mangi said. He later clarified he believes Israel has a right to exist.

Berner faced criticism from Cotton and Senators Mike Lee (R-Utah) and Lindsey Graham (R-South Carolina) over allegedly saying, in a 2020 speech, that the right-to-work movement is "deeply racist."

Berner answered that the speech was made in her capacity as council for the SEIU.

Senator Marsha Blackburn (R-Tennessee) was among those who questioned Berner about her response to an incident that occurred at an SEIU local.

SEIU-United Healthcare Workers West settled a sexual misconduct suit that made allegations against Dave Regan, who is now president of the SEIU-UHW. The terms of the settlement were not released, according to Payday Report.

A person who made allegations against Regan had asked Berner to investigate.

"It appears the union knew about these allegations and the union failed to take action and they continued to support the men who carried out the allegations," Blackburn said. "The fact that he is still there and the fact that he was known — this wasn't something that was hearsay, he was known for going to conferences, for getting drunk at the conference and inappropriately dancing with female employees — what it appears is this is just the tip of the iceberg."

Berner said that the SEIU local is separately affiliated from the national SEIU organization, and that her actions were done in accordance with her ethical obligations as a lawyer.

"What I can tell you is that I take all allegations of sexual assault seriously, but I faithfully carried out my role as an advocate and if I'm so fortunate to be confirmed, any position I take on behalf of a client would not have any relation to any positions I take as a judge," she said.

Democratic senators
Democratic senators on the committee asked Berner and Mangi versions of the GOP questions that allowed them to provide a few answers; at one point Durbin accused Senator Ted Cruz (R-Texas) of badgering Mangi.

These senators included lesbian Senator Laphonza Butler (D-California), who allowed Berner to expound on the right-to-work movement speech and the SEIU situation.

"Can you describe the role of local union legal staff in comparison to the role you had as general council for the national SEIU?" she asked

Answered Berner: "Each member of the union is a member of a locally-chartered affiliate. Each local union has its own council, its own constitution and governing body. I'm counsel to the international union and am not responsible for local unions except when I'm called upon in specific instances. In the instance referenced, I was not called upon to be council."

Durbin read a December 8 letter from the 210,000 advocates of the National Council of Jewish Women supporting Mangi's nomination.

"The National Council of Jewish Women believes the judiciary is best served by qualified judges who are fair minded and independent and reflective of the diversity of this nation," the letter states. Durbin read it into the record before saying to Mangi that "I am sorry that you were subjected to the suggestion you are antisemitic or insensitive. This letter indicates that those people who looked at your record feel just the opposite."

Senator Alex Padilla (D-California) thanked the nominees "for your willingness to serve."

"You two just don't get here like that," Padilla said. "There is certainly an interest in serving on your part or professionals who advise members of the Senate on who would be a good member of the federal judiciary, conduct some initial outreach, some initial background, some initial vetting ... and personal experience, and if you meet that threshold, a name is put forward."

Padilla submitted two additional letters — one from the New Jersey State Bar Association in support of Mangi and a second in support of Berner from former clerks of the late Betty Binns Fletcher, a longtime 9th Circuit judge who died in 2012.

"We share a special bond with Nicole," the letter states. "All of us had the honor of clerking for Judge Betty Fletcher. We have no doubt that Nicole will bring her exceptional talents to bear as a 4th Circuit judge."

The committee adjourned without Durbin saying when a vote is scheduled to forward the nominations to the whole Senate.

The Leadership Conference on Civil and Human Rights, which earlier this year advocated for Biden to nominate more out LGBTQ judges, praised both Berner and Mangi.

"As they demonstrated during today's hearing, Nicole Berner and Adeel Mangi will be phenomenal and fair-minded federal judges," stated Maya Wiley, CEO of the Leadership Conference. "Throughout their accomplished legal careers, both nominees have shown a sincere dedication to civil and human rights that our federal courts need."

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