On the day President Biden announced his nomination of Nicole Berner to the U.S. Court of Appeals for the Fourth Circuit, the Planned Parenthood Action Fund issued a celebratory press release that touted one of its former litigators’ extensive experience seeking the judicial elimination of various limitations on abortion, including access to the procedure for “young people.” If confirmed, the release noted, Berner “would be only the third out lesbian on any U.S. circuit court and the first to sit on the U.S. Court of Appeals for the Fourth Circuit.”
The Fourth Circuit has already shifted dramatically from being one of the most conservative courts in the country to one of the more liberal, and this nomination threatens to make that circuit even worse. Berner is in fact an across-the-board leftist ideologue. She had worked for several years as a staff attorney at the Planned Parenthood Federation of America and has filed several amicus briefs before the Supreme Court opposing religious liberty. More recently, Berner has been a partner at James & Hoffman, where she is on full-time retainer as the general counsel of the Service Employees International Union (SEIU). In a letter to the Senate last December, The Leadership Conference on Civil and Human Rights wrote in support of her nomination that “Berner has either authored or overseen the writing of amicus briefs for every major LGBTQ rights case that the Supreme Court heard during that period,” including Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Gloucester County School Board v. G.G., Obergefell v. Hodges, United States v. Windsor, and Hollingsworth v. Perry.
Berner penned a post for SCOTUSblog’s Symposium on the Court’s ruling in Bostock titled “The moral arc bends toward justice: Toward an intersectional legal analysis of LGBTQ rights.” The piece praised Bostock as a “historic victory” and “another bend in the arc of the moral universe toward justice.”
During her Senate Judiciary Committee hearing on December 13, several Republican members questioned Berner over a 2018 speech she delivered in which she said “at its core, the right-to-work movement is deeply racist.” While refusing to admit that she said that, Berner told Senator Tom Cotton she didn’t have the text of the speech in front of her but that she was speaking “historically.” She was evasive on the same subject when questioned by Senator John Kennedy, who said he did not believe she was telling the truth about turning over to the committee all of her notes from her speeches.
Additionally, when top officers in the SEIU, including the union’s president, failed to take action against sexual predators within the union and even promoted some of the offenders, Berner disclaimed any role for the national union to investigate allegations at the local union level. She was also part of a working group at Harvard Law School that produced a 2020 report on labor entitled “Clean Slate for Worker Power: Building a Just Economy and Democracy” about which Senator Lindsey Graham questioned her. The report’s proposals included requiring 40% of corporate board positions to be reserved for workers and conferring new labor rights upon prisoners and illegal immigrants—additional topics on which her memory seemed to fail her during her hearing.
This afternoon, the Senate will vote on cloture on Berner’s nomination. She has the perfect profile to advance the Biden administration’s agenda of payback to the dark-money groups that spent over a billion dollars to help elect the president and the Senate’s Democratic majority. If she were confirmed, we could expect she would be anything but impartial, especially in cases that involve the Left’s priorities. No senator claiming to be a centrist could with a straight face support giving this nominee a lifetime appointment to an appellate judgeship.