Senate confirms LGBTQ labor attorney to seat on appeals court

The top attorney for one of the largest US labor unions on Tuesday won US Senate approval for a seat on the 4th US Circuit Court of Appeals, making her the first openly LGBTQ judge to serve on the Richmond, Virginia-based court.

The Democratic-led Senate on a 50-47 vote confirmed Nicole Berner, the Service Employees International Union’s general counsel, with Republicans opposing her citing her advocacy against right-to-work laws and for liberal causes.

Democratic Sen. Joe Manchin of West Virginia crossed party lines to vote against Berner, as the moderate has done with some of Democratic President Joe Biden’s other judicial nominees. Three Republicans did not vote.

Berner’s confirmation helped further fulfill Biden’s campaign pledge to diversify the federal judiciary.

She is the 30th woman confirmed to a federal appeals court under Biden and 11th openly LGBTQ judge, a number that ties former Democratic President Barack Obama’s eight-year record.

The 4th Circuit hears appeals from Maryland, North Carolina, South Carolina, Virginia and West Virginia. With Berner’s confirmation, it will have nine active judges appointed by Democratic presidents and six by Republicans.

Biden’s decision to nominate Berner followed calls from progressive advocates for the White House to appoint more pro-union labor lawyers to the bench at a time of rising unionization efforts nationwide and strikes in major industries.

Berner, a former staff attorney at Planned Parenthood, has worked since 2006 at SEIU, which represents about two million workers. She is also a partner at the union-side labor law firm James & Hoffman.

She is married to Debra Katz, a prominent lawyer who during now-US Supreme Court Justice Brett Kavanaugh’s 2018 confirmation hearings represented Christine Blasey Ford, the woman who accused him of sexual assault.

Berner faced questions about Kavanaugh’s nomination when he appeared before the Senate Judiciary Committee in December. Senate Republicans questioned her about remarks she had made comparing them to “anti-union employers” for only hearing testimony from Ford and not other Kavanaugh accusers.

Republican Sen. Mike Lee of Utah at that hearing said he took issue with his suggestion “that we ignored or ignored anyone.” Berner stressed that she believed Kavanaugh was “legitimately confirmed” and she would follow his opinion.

Sen. Lindsey Graham of South Carolina, the ranking Republican on the committee, questioned Berner about a speech he delivered in 2018 in which, according to notes provided to the committee, Berner said that the right-to-work movement was “deeply racist.”

Berner said he was speaking about the “historic roots” of the movement. Graham cut him off, but in a later written submission to the panel, Berner said he does not believe the movement today, unlike decades ago, is racist.

Graham was one of three Republicans who did not vote on Tuesday.

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