[Congressional Record Volume 170, Number 48 (Tuesday, March 19, 2024)]
[Senate]
[Pages S2431-S2433]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Nicole G. Berner

  Mr. DURBIN. Mr. President, today, the Senate will vote to confirm 
Nicole Berner to the U.S. Court of Appeals for the Fourth Circuit.
  After receiving her B.A., M.P.P., and J.D. from the University of 
California, Berkeley, Ms. Berner clerked for the Hon. Betty Binns 
Fletcher on the U.S. Court of Appeals for the Ninth Circuit and the 
Hon. Thelton E. Henderson on the U.S. District Court for the Northern 
District of California.
  After several years in private practice, Ms. Berner served as a staff 
attorney at Planned Parenthood Federation of America, litigating cases 
to protect and expand access to reproductive healthcare.
  Since 2006, she has worked at the Service Employees International

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Union--SEIU--currently serving as general counsel. At the SEIU, she has 
worked on a range of matters, including cases arising under labor and 
employment laws and regulations, as well as advising on legal claims 
involving criminal law, voting rights, Federal preemption, antitrust, 
bankruptcy, and immigration.
  Ms. Berner has the strong support from her home State Senators, Mr. 
Cardin and Mr. Van Hollen. In addition, she received a ``well 
qualified'' rating from the American Bar Association.
  Ms. Berner will be the first openly LGBTQ+ person to serve on the 
U.S. Court of Appeals for the Fourth Circuit and will bring 
professional diversity as a lawyer with expertise in representing 
employees and labor organizations. Ms. Berner's breadth and depth of 
experience demonstrates that she is eminently qualified to serve on the 
bench.
  I urge my colleagues to support Ms. Berner's nomination.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. VAN HOLLEN. Mr. President, I ask unanimous consent that, 
following my remarks, Senator Cardin be permitted to speak for up to 10 
minutes prior to the scheduled vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VAN HOLLEN. Mr. President, I come to the floor today to express 
my strong support for the confirmation of Nicole Berner of Maryland to 
the U.S. Court of Appeals for the Fourth Circuit.
  She is an outstanding nominee to represent Maryland on that court. 
That is why Senator Cardin and I were proud to recommend her nomination 
to the Senate Judiciary Committee. We are pleased the Senate Judiciary 
Committee advanced her nomination to the floor of the Senate, and today 
we are proud to recommend her nomination to the full U.S. Senate.
  Ms. Berner's impressive legal career is a testament to her 
exceptional skill and unwavering dedication to justice, to fairness, 
and to service.
  Ms. Berner is a highly experienced litigator. She knows the 
courtroom. She is currently a partner at the law firm of James & 
Hoffman, where she is on full-time retainer as the general counsel of 
the Service Employees International Union, or SEIU. In over 15 years as 
the general counsel to SEIU, she has represented the union's 2 million 
members in a diverse range of professional sectors, making her deeply 
knowledgeable about the challenges facing working people throughout the 
United States of America.
  There are few judges on the Federal bench--and none on the Fourth 
Circuit--who have this practice background.
  As part of her substantial litigation responsibilities, Ms. Berner 
has worked on a range of matters, including cases arising under labor 
and employment laws and regulations, as well as advising on legal 
claims involving criminal law, voting rights, Federal preemption, 
antitrust, bankruptcy, immigration, and the list goes on.
  She has served as counsel in more than three dozen cases before the 
U.S. Supreme Court and dozens more in Federal courts of appeals.
  Earlier in her career, Ms. Berner was a staff attorney with Planned 
Parenthood Federation of America, litigating cases to protect and 
expand access to reproductive care and healthcare. She also spent 
several years in private practice. She has also worked to train future 
lawyers as an adjunct professor at Vanderbilt Law School.

  She earned her J.D. from the University of California Berkeley Law 
School and went on to clerk for two Federal judges--one in the Ninth 
Circuit Court of Appeals and one in the District Court for the Northern 
District of Columbia.
  Based on all her legal experience, the American Bar Association gave 
Ms. Berner its highest rating of ``well qualified'' for the position 
she has been nominated for.
  Her confirmation would mark a significant milestone for the Fourth 
Circuit. If confirmed, she would be the first openly gay, LGBTQ judge 
to serve on that court.
  Ms. Berner's qualifications, her values, and her life experience, 
coupled with her notedly steady, thoughtful, and calm demeanor, which 
was exhibited during the hearing and questioning on the Senate 
Judiciary Committee, will make her an exceptional addition to the 
Fourth Circuit.
  Her nomination has inspired letters and statements of support from a 
host of organizations, including 27 interfaith organizations, the 
International Brotherhood of Police Officers, the National Council of 
Jewish Women, the Lawyers' Committee for Civil Rights under Law, the 
National Women's Law Center, a number of union presidents--23 of them--
the Leadership Conference on Civil and Human Rights, the National Task 
Force to End Sexual and Domestic Violence, among many others.
  I know that Ms. Berner would say and she has told us that she has 
traveled this important journey of her life alongside other members of 
her family: her wife Debra and their sons Mattan, Naveh, Segev, and 
Ari.
  I join my good friend and colleague, the senior Senator from the 
State of Maryland, Ben Cardin, in strongly recommending that the U.S. 
Senate confirm Nicole Berner to the U.S. Court of Appeals for the 
Fourth Circuit.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, first, let me thank Senator Van Hollen for 
his friendship and the way that we have been recommending potential 
members to the bench, working together, in regards to the Maryland 
judiciary.
  Nicole Berner is an outstanding candidate for the Fourth Circuit, to 
fill the position vacated by Diana Gribbon Motz.
  I just really want to underscore some of the points that Senator Van 
Hollen said.
  Nicole Berner is an extraordinarily qualified candidate to serve on 
the Fourth Circuit--her experience, which Senator Van Hollen went over 
in great detail, 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. Senator 
Van Hollen went over her qualifications. I am just going to underscore 
a few of those points.
  Ms. Berner serves as general counsel to the Service Employees 
International Union, SEIU, and she has been in-house counsel since 
2006. She served as staff attorney for Planned Parenthood and worked as 
a litigation associate at a private law firm. She served as a law clerk 
for a district court judge in California and an appellate court judge 
in the Ninth Circuit.
  She has a record of fighting for working families. She has filed 
numerous--numerous--amicus briefs before the Supreme Court of the 
United States as well as circuit and district courts that she has been 
involved with. She has been a lawyer in hundreds of cases in Federal 
and State courts, protecting the rights of working families.
  So let me just share with you a couple things that really, I think, 
are outstanding in her background.
  First, she is motivated by a desire to ensure full and fair access to 
the courts for all Americans, regardless of their social status or 
financial resources. She has consistently advocated for the interests 
of historically underrepresented communities.
  Second, as a skilled appellate lawyer, she has organized legal 
strategies to bring her clients' voices to the court and tell their 
story. She seeks to show how their lives will be affected by the 
outcome of a case.
  During the COVID-19 pandemic, she represented frontline workers who 
literally put their lives and health at risk to do their jobs and keep 
our economy running when many Americans were told to stay home until 
the vaccine was developed. Her SEIU clients included workers in the 
fast-growing occupations of public services, healthcare, home care, 
childcare, janitorial, and building security. She represented them at 
that time.
  We talk a lot about our frontline workers as being our heroes. Nicole 
Berner is one of those heroes.
  Third, she would bring a unique and diverse perspective to the 
appellate court. We know that the Fourth Circuit is a particularly 
diverse circuit and includes the States of Maryland, West Virginia, 
Virginia, North Carolina, and South Carolina. A more diverse bench will 
better reflect the population that the judges serve as well as better 
inform judicial decision making.

  Fourth, Ms. Berner brings to the bench both her vast experience as an

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appellate lawyer and her own personal advocacy as a Jewish woman on so 
many civil rights issues. Ms. Berner successfully won a long-running 
case involving her own family at the Israeli Supreme Court--a landmark 
ruling that required the government to recognize two mothers as the 
parents of one child.
  Fifth, she has received strong endorsements, and Senator Van Hollen 
pointed out the list of endorsements from very diverse groups, from 
civil rights to law enforcement.
  Let me highlight one of those letters--we received numerous letters--
one of those letters that came from former assistants to the Solicitors 
General of two different administrations--the Reagan administration and 
the Clinton administration. The letter is authored by David Frederick 
and Andrew Pincus.

       We have worked with, litigated against, and collaborated on 
     cases with Ms. Berner in the Supreme Court of the United 
     States and federal courts of appeal over more than a decade. 
     Based on that professional experience, we are united in the 
     firm conviction that Ms. Berner is highly qualified to serve 
     on the Fourth Circuit and will be an excellent appellate 
     judge.
       Ms. Berner has demonstrated superb skills as a writer, 
     legal analyst, and advocate in the appellate cases in which 
     we have seen her work up close. . . . Her legal training is 
     extensive, including as a law clerk to a distinguished court 
     of appeals judge, an associate in a well-respected law firm, 
     a lawyer in a public interest organization, and general 
     counsel of one of the largest labor unions in the country. 
     Ms. Berner's experience with a wide range of the legal issues 
     that arise in the federal courts, her diverse roles as a 
     lawyer, and her professional expertise, which we have 
     observed firsthand, demonstrate that she will be a first-rate 
     appellate judge.
       Just as impressive as Ms. Berner's legal skills are her 
     personal qualities. She is unfailingly polite and measured in 
     her interactions with others, even on highly contentious 
     issues. She listens carefully and thoughtfully with an open 
     mind to new ideas--even those that may not comport with her 
     personal experience--so that she can offer the soundest 
     position in a case. These qualities make us certain that she 
     will transition seamlessly from the role of advocate to the 
     work of a circuit judge. She will understand that serving as 
     a judge requires her to act as a neutral arbiter based on 
     faithful application of the relevant constitutional or 
     statutory text, precedent, and record facts.

  I would note that Ms. Berner is a longtime resident of Montgomery 
County, MD. She has been an active member of her synagogue and 
community and lives with her wife in Takoma Park, MD. I appreciated the 
opportunity to meet with Ms. Berner and talk to her about her 
priorities and her commitment to fully integrate into the vibrant 
Maryland legal community, including Baltimore.
  I also want to join Senator Van Hollen in thanking her family because 
this truly is a joint sacrifice in public service.
  I urge my colleagues to ratify her nomination and vote in favor of 
her nomination.
  I yield the floor.