With the U.S. Senate confirmation of a lesbian federal bench nominee, President Joe Biden has now tied former President Barack Obama's record of 11 openly LGBTQ federal judges.
Nicole Berner was confirmed in a 50-47 vote by the Senate March 19. She had no Republican votes. She will now be sitting on the 4th U.S. Circuit Court of Appeals. As the Bay Area Reporter previously reported, Berner, 59, had been general counsel for the Service Employees International Union.
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.
Senator Ben Cardin (D-Maryland) said during her December confirmation hearing 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," Senator Chris Van Hollen (D-Maryland) said at that time. "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.
Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, issued a statement celebrating the confirmation vote.
"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," she stated in a news release. "Ms. Berner also becomes the first openly LGBTQ person to ever serve on the Fourth Circuit and just the third openly LGBTQ woman to serve on any federal appellate court in the nation.
"Her confirmation adds crucial lived experience to the court and sends a powerful signal to young LGBTQ lawyers, law students, and other potential future judges that they belong on the federal bench," WIley added. "That matters. And it matters because the demographic and professional diversity she brings to the bench is woefully underrepresented on our federal courts and helps to improve judicial decision-making, build public trust, and strengthen our democracy."
Biden has made protecting reproductive rights a major part of his pitch for a second term since the U.S. Supreme Court overturned Roe v. Wade two years ago. During his recent State of the Union address he described right-wing attacks on abortion rights as a threat to American freedom. As the B.A.R. previously reported, Biden said, "Many of you in this chamber and my predecessor are promising to pass a national ban on reproductive freedom. My God, what freedom else would you take away?"
Alliance for Justice President Rakim H.D. Brooks also issued a statement.
"We can finally say the words 'Judge Nicole Berner,'" Brooks stated. "Berner is a phenomenal lawyer who champions a vision of our Constitution that protects all Americans, not just the wealthy and powerful. Our courts so desperately need more movement lawyers, and namely labor lawyers, like her on the bench."
Meanwhile, CNN reported March 14 that Democratic senators have told the White House there are not enough votes to confirm Adeel Mangi, whose confirmation hearing was held at the same time as Berner's. Mangi, a Muslim, was questioned by Senate Republicans about his views on the Israeli-Palestinian conflict, as the B.A.R. reported at the time.
Brooks also issued a statement on the Mangi matter.
"The Senate should now immediately turn to also confirming Adeel Mangi, another incredibly qualified nominee who has been the subject of gross, false attacks," Brooks stated. "Berner and Mangi are the pinnacle of the kind of judges our courts deserve."
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