Senate confirms Maryland resident to 4th Circuit — its first openly LGBTQ judge

The U.S. Senate has confirmed Nicole Berner for a seat on the U.S. Court of Appeals for the 4th Circuit, making her the court’s first openly LGBTQ judge.

In a 50-47 Senate vote on Tuesday, Berner, a Maryland labor lawyer, became the court’s sixth new judge in as many years.

Berner most recently served as general counsel of the Service Employees International Union, where she oversaw litigation on behalf of the union and its two million members in cases involving health care, immigration and LGBTQ and voting rights. She has represented civil rights and civil liberties matters before federal district courts, circuit courts of appeal and the U.S. Supreme Court.

“Nicole Berner has been a tireless champion of working people, underrepresented communities, and women across her legal career,” Mary Kay Henry, president of the Service Employees International Union, said in a statement. “Nicole is recognized by her colleagues for her fairness, thoughtfulness and open-minded temperament.”

Berner received a nomination to the 4th Circuit from President Joe Biden in November after Maryland Sens. Chris Van Hollen and Ben Cardin, both Democrats, recommended Berner to fill a court vacancy.

“Ms. Berner’s impressive legal career is a testament to her exceptional skill and unwavering dedication to justice, to fairness and to service,” Van Hollen said on the Senate floor before the vote.

Van Hollen noted Berner’s advocacy for working people and equal justice, describing her in a statement as “a voice for the voiceless throughout her career.”

Cardin similarly praised Berner before the Senate on Tuesday.

“Nicole Berner is an extraordinarily qualified candidate to serve on the 4th Circuit,” Cardin said. “Her experience … her understanding of the importance of the independent judicial branch of government and protecting our rights, and her commitment to the values, which are the strength of our nation.”

Berner’s nomination was supported by leaders of more than 25 major labor unions, as well as more than 60 advocacy groups, including the National Education Association.

“Ms. Berner has spent her career fighting for the rights of those most at risk — particularly individuals who live below the poverty line, people of color, and women,” wrote Marc Egan, director of government relations for the National Education Association in the organization’s open letter to senators.

Previously, Berner worked as a staff attorney at Planned Parenthood Association of America, where she litigated reproductive rights cases nationwide.

Berner’s confirmation comes at a time of a sort of ‘evolution’ of the 4th Circuit, marked by a handful of judges taking senior status during the Trump and Biden administrations.

Perception of the court has also shifted over the past decade, with the once conservative 4th Circuit becoming one of the most liberal courts in the country.

Berner received her law degree and masters of public policy in 1996 from the University of California, Berkeley, and previously earned her bachelor’s degree from the same institution in 1988.