Biden delivering on pledge to diversify the federal judiciary
Nicole Berner is the 30th woman confirmed to a federal appeals court under Biden and 11th openly LGBTQ judge, a number that ties former Democratic President Barack Obama’s eight-year record.
LA Independent News Services
The Biden administration has now matched the record number of judges confirmed to the federal judiciary during the entire Obama administration, according to data analyzed by The Leadership Conference on Civil and Human Rights, a lobbying group.
The top lawyer for one of the largest U.S. labor unions last Tuesday won U.S. Senate approval for a seat on the 4th U.S. Circuit Court of Appeals, making her the first openly LGBTQ judge to serve on the Richmond, Virginia-based court.
The Democratic-led Senate on a 50-47 vote confirmed Nicole Berner, the Service Employees International Union’s general counsel, with Republicans opposing her citing her advocacy against right-to-work laws and for liberal causes.
Berner’s confirmation helped further fulfill Biden’s campaign pledge to diversify the federal judiciary.
She is the 30th woman confirmed to a federal appeals court under Biden and 11th openly LGBTQ judge, a number that ties former Democratic President Barack Obama’s eight-year record.
Berner, a former staff attorney at Planned Parenthood, has worked since 2006 at SEIU, which represents about two million workers. She is also a partner at the union-side labor law firm James & Hoffman.
She is married to Debra Katz, a prominent lawyer who during now-U.S. Supreme Court Justice Brett Kavanaugh’s 2018 confirmation hearings represented Christine Blasey Ford, the woman who accused him of sexual assault.
“The vital work of building an equal justice judiciary that represents and works for all people in our nation must continue,” said Lena Zwarensteyn, senior director of the fair courts program at The Leadership Conference.
“We need more openly LGBTQ judges, including trans and non-binary judges — and we need judges from all of our communities who will respect the rights of all of us.”
There are now 23 LGBTQ judges on US federal courts, but there were 814 active federal judgeships as of March 12, according to a CNN analysis of Federal Judicial Center data.
While federal judges who identify as LGBTQ make up about 3% of the overall federal judiciary, a 2023 Gallup survey shows the percentage of adults who identified as LGBTQ in the US has more than doubled in the past decade to 7.6% of Americans.
Neither a transgender nor a nonbinary person has been nominated or confirmed for a lifetime federal judgeship in the US, according to The Leadership Conference on Civil and Human Rights.
Don Haider-Markel, a professor of political science at the University of Kansas and author of “Out and Running: Gay and Lesbian Candidates, Elections, and Policy Representation,” said while having LGBTQ+ judges doesn’t guarantee a certain outcome in court, judges from underrepresented communities bring their diverse experiences to the bench.
“We’ve seen these judges do have a pattern of decision-making that differs from the typical White, male decision-making we see out of judges,” Haider-Markel said.
“We would expect something similar from LGBTQ judges in that their decision-making will look different than the typical cisgender, White male.”
Maya Wiley, president and CEO of The Leadership Conference, said DuBose’s Senate confirmation matters because “Black women and openly LGBTQ people in our nation have long been underrepresented and excluded from service on our federal courts, and yet they come to federal courts to vindicate their rights.”
“It matters because this representation will inspire more Black women and more LGBTQ people to go to law school and seek to serve in such positions,” Wiley said.
Deborah A. Batts, the first known LBGTQ federal judge in the US, was appointed by former President Bill Clinton in 1994. Under the Trump administration, only two LGBTQ people were confirmed as federal judges.
The federal bench remains largely male and White. While the male-to-female ratio in the US is about even, men account for more than 60% of federal judgeships.
White people make up about three-fourths of the US population and two-thirds of the federal bench. Hispanic or Latino judges account for 11% of the federal judiciary, though 19% Americans are Hispanic or Latino. Black Americans make up 14% of the population and 16% of federal judges.
