“She’s diverse in several different ways. Not only is she an accomplished workers’ rights attorney, but she’s a mom, she’s an LGBTQ woman, she is Jewish,” Randi Weingarten, president of the American Federation of Teachers, said in an interview before the nomination was announced. She advocated for Berner in a letter to Sen. Ben Cardin (D-Md.) and Sen. Chris Van Hollen (D-Md.) early last year, saying she would be the first openly gay judge on the 4th Circuit and its only judge with a labor background.
The open seat on the 4th Circuit was vacated in September 2022 by Judge Diana Gribbon Motz, a Clinton appointee, who took senior status. Once one of the most conservative appeals courts in the country, after the Obama administration the 4th Circuit has become one of the most liberal, issuing landmark decisions on transgender rights and gun restrictions.
The seat remained open for many months amid disagreements between the White House and Senate. The White House nominates judicial candidates, but they must be confirmed by the Senate. By tradition, senators can block disfavored nominees from their home state using a “blue slip.”
Manny Pastreich, president of the SEIU Local 32BJ, said he knows of only two appellate judges in the country with labor experience. Pointing to recent Supreme Court decisions restricting unions’ organizing power, he said, “Having the worker voice in the courts is incredibly important for the future of this country.”
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