Biden’s Planned Fourth Circuit Pick Is Steadfast Union Ally

President Joe Biden’s planned nomination to the US Court of Appeals for the Fourth Circuit is seen as a gift to unions—particularly their legal allies who have felt neglected in recent years.

Biden’s intended nomination of Nicole Berner, general counsel to the Service Employees International Union, elevates an ally who has spent her career fighting for organized labor and other liberal causes. If confirmed, Berner would accelerate the leftward shift of a court that is historically one of the most conservative in the nation.

“Thumbs up,” said Jeffrey Hirsch, a professor at the University of North Carolina School of Law who previously was an appellate litigator for the National Labor Relations Board. “We’ve been waiting to get a solid labor person, especially in the Fourth Circuit.”

Berner was one of five nominees for federal judgeships announced Wednesday, including Adeel Mangi, nominee for the US Court of Appeals for the Third Circuit, who would be the first Muslim judge on a federal appellate court.

Berner’s track record suggests she’ll be a friend to unions in states within the Fourth Circuit, which covers North and South Carolina, Maryland, Virginia, and West Virginia, and has some of the lowest union density in the nation.

During her time at SEIU, Berner played a role in the Fight for $15 campaign to raise state and local minimum wages, as well as campaigns to organize childcare and home care workers who weren’t traditionally unionized. She was also the lead attorney on a US Supreme Court amicus briefdefending the Affordable Care Act that received a favorable ruling from the court in 2021.

“She cuts through the heart of issues,” said Michael Rubin, a partner at the law firm Altshuler Berzon. “Based on close to two decades of seeing her in action I can say she will be an extraordinary judge.”

Ryan Griffin, a partner with Berner at the law firm James & Hoffman, praised her “temperament and even-handedness” in a statement provided by a spokeswoman.

Union Ties

Unions have been a key constituency for Biden since he launched his 2020 campaign at a union hall in Pennsylvania. Berner’s nomination is the latest in a series of moves in recent weeks to shore up support among organized workers, including becoming the first sitting president to walk a picket line with the United Auto Workers and sporting a union t-shirt during a recent speech to workers in Belvidere, Ill.

While Biden’s support for unions is unquestionable, left-leaning labor lawyers say they’ve noticed few union attorneys appointed to the bench—a troubling pattern when it comes to their ability to argue and win cases brought under the National Labor Relations Act. The unusual structure of the law makes it difficult for unfamiliar judges to decide labor cases, they say.

“It was not unusual to have panels that clearly didn’t have experience with the NLRA and didn’t even grasp what the statue was supposed to do,” Hirsch said. “Sometimes I’d spend all my time explaining it. It felt like intro to labor law or something.”

Earlier in her career, Berner was a staff attorney for the Planned Parenthood Federation of America, a line on her resume that’s sure to harden opposition among Republican senators.

Berner’s legal influence has extended abroad. She and her ex-wife sued the Israeli government in 2000 and later became the country’s first same-sex couple to be recognized as co-mothers. Both were dual citizens and seeking the same status for their children. She would be the first openly LGBTQ judge on the Fourth Circuit, according to the White House.

“We’re what’s known as white-picket-fence lesbians, or whatever the Israeli equivalent would be,’' Berner told the New York Times that year. ''We’re like perfect poster children for alternative families.’'