Nicole Gina Berner

Nicole Gina Berner (born 1965) is an American‑Israeli attorney who serves as a United States circuit judge on the Court of Appeals for the Fourth Circuit. Appointed by President Joseph R. Biden, she received her commission in March 2024 and became the first openly LGBTQ jurist to sit on that court. Prior to joining the federal bench, Berner held senior positions in private practice, nonprofit advocacy, and labor law, most notably as general counsel for the Service Employees International Union (SEIU). Her career has encompassed litigation, policy work, teaching, and participation in professional legal organizations.

Early life and legal career

Berner was born in 1965 in Woking, Surrey, England to American parents. During her childhood the family relocated to the United States, establishing residence in Oakland, California. She pursued undergraduate studies at the University of California, Berkeley, where she earned a Bachelor of Arts degree in women’s studies. While an undergraduate, Berner spent one semester studying abroad at the University of Haifa in Israel; this experience prompted her decision to move permanently to Israel after completing her degree.

In 1990, while living in Tel Aviv, Berner founded Bat Adam, a nonprofit organization dedicated to supporting victims of sexual assault and domestic violence. Two years later she returned to the United States to continue her education at Berkeley School of Law. She obtained both a Juris Doctor from the law school and a Master of Public Policy from the Goldman School of Public Policy, also at the University of California, Berkeley.

Berner’s early legal experience included clerkships with federal judges. From 1996 to 1997 she served as a law clerk for Judge Betty Binns Fletcher of the United States Court of Appeals for the Ninth Circuit. The following year she clerked for Chief Judge Thelton Henderson of the United States District Court for the Northern District of California. After completing her clerkships, Berner worked internationally as a visiting attorney at Yigal Arnon & Co. in Israel from 1999 to 2000.

She entered private practice in the United States as a litigation associate with Jenner & Block, where she worked from 2000 until 2004. Following this period, Berner served as a staff attorney for Planned Parenthood between 2004 and 2006, focusing on issues related to reproductive health law.

Berner’s career shifted toward labor and employment advocacy when she joined the legal department of the Service Employees International Union in 2006 as an in‑house counsel. Over the next decade she advanced within SEIU, ultimately being appointed general counsel in 2017. In that capacity she oversaw a broad range of legal initiatives, including efforts to defend the Affordable Care Act, opposition to the Defense of Marriage Act, and challenges to attempts to terminate the Deferred Action for Childhood Arrivals (DACA) program during the Trump administration. She also led SEIU’s participation in significant appellate advocacy, such as filing an amicus curiae brief in *California v. Texas* on behalf of the union, and contributed to the national “Fight for $15” campaign for a higher minimum wage.

In addition to her practice work, Berner has been active in legal education and professional service. In 2023 she was appointed an adjunct professor of law at Vanderbilt Law School. She is an elected member of the American Law Institute and holds fellowships with both the American Bar Foundation and the College of Labor and Employment Lawyers.

Berner’s early litigation experience also includes a notable civil‑rights case in Israel. As a dual American‑Israeli citizen, she and her then‑spouse Ruti Kadish successfully challenged the Israeli Ministry of Interior’s refusal to register their son as having two mothers. The Supreme Court of Israel ruled that the ministry must recognize the adoption decree, establishing an important precedent for same‑sex parents in the country.

Federal appellate service

President Joseph R. Biden announced his intent to nominate Berner to the United States Court of Appeals for the Fourth Circuit on November 15, 2023. The nomination was formally transmitted to the Senate on November 27, 2023, filling the vacancy created when Judge Diana Gribbon Motz assumed senior status on September 30, 2022.

Berner’s confirmation process began with a hearing before the Senate Judiciary Committee on December 13, 2023. During that hearing she addressed questions concerning her prior work as SEIU general counsel and other aspects of her professional background. The nomination was returned to the President under Senate Rule XXXI, Paragraph 6 on January 3, 2024, and she was promptly renominated on January 8, 2024.

The Judiciary Committee reported Berner’s nomination out of committee on January 18, 2024 by an 11–10 vote along party lines. The full Senate subsequently invoked cloture on her nomination on March 14, 2024 with a vote of 48‑40; Senator Joe Manchin voted against the motion. On March 19, 2024 the Senate confirmed Berner by a 50‑47 vote, again with Senator Manchin opposing confirmation. She received her judicial commission later that day, becoming an active circuit judge on the Fourth Circuit.

Berner’s appointment is historically significant for the Fourth Circuit because she is its first openly LGBTQ judge. Her professional background in civil rights, labor law, and public policy informs her perspective as a member of the federal appellate judiciary.

Jurisprudence and legacy

Although Judge Berner has served on the Fourth Circuit for only a short period, several aspects of her career provide insight into the potential influence she may have on the court’s jurisprudence. Her extensive experience representing labor unions and advocating for employee rights suggests a deep familiarity with statutes governing collective bargaining, workplace safety, and wage standards. This background aligns with the Fourth Circuit’s frequent adjudication of employment‑related cases arising under federal labor law.

Berner’s work defending the Affordable Care Act and opposing measures such as the Defense of Marriage Act reflects a commitment to interpreting statutory schemes in ways that preserve broad coverage and protect civil‑rights protections. Her involvement in litigation concerning DACA indicates experience with immigration policy and administrative law, areas that regularly appear before appellate courts.

The Israeli Supreme Court decision in *Berner‑Kadish v. Minister of Interior* demonstrates her engagement with family‑law issues affecting same‑sex couples. While the case was decided under a different legal system, it underscores her personal connection to civil‑rights litigation concerning parental recognition and gender equality. This experience may inform her approach to cases involving equal protection claims or other constitutional questions related to LGBTQ rights.

Berner’s academic role as an adjunct professor at Vanderbilt Law School adds a scholarly dimension to her profile. Teaching law students requires staying current with evolving legal doctrines, which can translate into rigorous analytical methods on the bench. Her election to the American Law Institute further indicates participation in projects aimed at clarifying and improving the law, such as drafting restatements or model statutes.

Professional affiliations—including fellowships with the American Bar Foundation and the College of Labor and Employment Lawyers—signal recognition by peers for contributions to the legal profession. These connections may provide her with a network of expertise that can be valuable when addressing complex appellate issues.

In terms of legacy, Judge Berner’s appointment expands representation on the Fourth Circuit both in terms of sexual orientation and professional background. As the first openly LGBTQ judge on that court, she contributes to the broader diversification of the federal judiciary, which has been noted as a factor influencing public confidence in the legal system. Her career trajectory—from advocacy for victims of violence in Israel to senior leadership within a major labor union—illustrates a blend of international experience and domestic policy work that is relatively uncommon among appellate judges.

Future assessments of her jurisprudential impact will depend on the opinions she authors, the panels on which she serves, and how her prior advocacy informs her interpretation of statutes and constitutional provisions. Nonetheless, her record suggests a judge who brings substantial expertise in civil rights, labor law, and public policy to the Fourth Circuit, positioning her to play a notable role in shaping the development of federal appellate jurisprudence in the coming years.