[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.