Nicole Berner – Nominee to the U.S. Court of Appeals for the Fourth Circuit

After an extensive dispute over picking a candidate for the Fourth Circuit, the Biden Administration and Maryland senators have agreed on longtime labor lawyer Nicole Berner.

Background

Born in England, Nicole G. Berner grew up in California before getting a B.A. from U.C. Berkeley in 1988 and a J.D. from Berkeley School of Law and a M.P.P. from the Goldman School of Public Policy at Berkeley in 1995.

After graduating, Berner clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and for Judge Thelton Henderson on the U.S. District Court for the Northern District of California. Berner subsequently joined Jenner & Block as an Associate.

In 2004, Berner joined Planned Parenthood as a staff attorney. In 2006, she shifted to the Service Employees International Union (“SEIU”) as in-house counsel, becoming general counsel in 2017. She serves in this role.

History of the Seat

Berner has been nominated to replace U.S. Circuit Judge Diana Gribbon Motz, who moved to senior status on September 30, 2022. Berner’s nomination came almost two years after Motz first announced her departure, a delay that was allegedly attributed to a dispute in candidates between the White House and Sen. Ben Cardin. However, Cardin and Sen. Chris Van Hollen have both indicated their support for Berner.

Legal Experience

Other than her clerkships, Berner started her legal career at the firm of Jenner & Block. Notably, Berner was part of the legal team representing Michael Schiavo in the suit to permit him to end nutrition and hydration for his wife Terri Schiavo. See Bush v. Schiavo, 871 So.2d 1012 (Fla. 2d Dist. App. 2004). While at the firm, Berner was part of the legal team representing amici in a suit challenging Arkansas’ sodomy ban. See Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002). Berner was also representing amici as part of a suit to strike down Kansas’ Romeo-and-Juliet law for distinguishing legal penalties based on whether couples were of the opposite sex or the same sex. See State v. Limon, 280 Kan. 275 (2005).

After her time at Jenner & Block, Berner spent two years at Planned Parenthood. While there, Berner was part of the legal team challenging Ohio’s ban on the drug mifepristone. See Planned Parenthood Cincinnati v. Taft, 444 F.3d 502 (6th Cir. 2006).

Since 2006, Berner has been in-house counsel for the union SEIU. In this role, Berner litigated across the country in cases where employers were accused of retaliating against union organizers or breaching union agreements. See, e.g., Finley Hosp. v. NLRB, 827 F.3d 720 (8th Cir. 2016). Berner has also served as counsel in litigation where SEIU has been sued for alleged violations. See, e.g., Bellitto v. Snipes, 221 F. Supp. 3d 1354 (S.D. Fla. 2016). During the Trump Administration, Berner was part of SEIU legal challenges to Trump executive orders governing union activities by government employees. See Service Employees Intern. Union Local 200 v. Trump, 419 F. Supp. 3d 612 (W.D.N.Y. 2019).

Additionally, Berner has served as amici counsel for unions in a number of different cases, including cases of marriage equality. See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). Berner also represented amici in Hawaii’s suit against the Trump travel ban. See Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). More recently, Berner has represented amici in a challenge to abortion restrictions in Missouri. See Reproductive Health Servs. v. Parson, 1 F.4th 552 (8th Cir. 2021).

Writings and Media

Berner has written and commented frequently on the law, including the intersection of the law and LGBT issues. See, e.g., Nicole Berner, Child Custody Disputes Between Lesbians: Legal Strategies and Their Limitations, 10 Berkeley Women’s L.J. 31, 32 (1995). Berner has also written on the challenges of being a female attorney. See Stephanie A. Scharf, Lorelei S. Masters, Nicole G. Berner, and Cynthia J. Robertson, Through the Glass Ceiling: Best Practices for Women Lawyers and Their Firms, 89 Women Law J. 7 (2003-2004).

In 2000, Berner was a plaintiff in Berner-Kadish v. Minister of Interior, a landmark Israeli Supreme Court case that recognized the rights of two mothers to be designated on a child’s birth certificate. The case, and subsequent legal support for same-sex parents in Israel, also led to media attention and profiles of Berner and her family. See, e.g., Meet the Berner-Kadish Family, New Israel Fund, June 11, 2015, available at https://www.nif.org/stories/human-rights-democracy/meet-the-berner-kadish-family/.

Political Activity

Berner has been a frequent donor to Democrats across the country, for example, donating to Sen. Elizabeth Warren in 2020. Berner has also given to unsuccessful senate candidates Cal Cunningham and Theresa Greenfield.

Overall Assessment

Berner comes to the federal bench with extensive litigation experience. Additionally, her work as a labor attorney and an attorney on LGBT and reproductive rights issues is likely to endear her to the left. However, those same qualifications are likely to attract strong opposition from conservatives. Additionally, conservatives may look askance at Berner’s wife’s representation of Christine Blasey Ford, who had accused Justice Brett Kavanaugh of sexual assault.

All in all, Berner is likely to be deemed a controversial nomination. If confirmed, Berner is likely to reinforce the liberal wing of the Fourth Circuit.

101 Comments

  6. raylodato's avatar

    Possibly controversial, but I’m saying it anyway: if the choice comes down to confirming Aframe this month or a bunch of district court nominees (assuming time is limited and only one option is available), I’d go for confirming the district court nominees and getting Aframe done in January.

    Liked by 1 person

    • dequanhargrove's avatar

      If Aframe could get a deal similar to what Sanchez & Thomas got, i would definitely take that deal. Both of them fit Unanimous Consent at the end of 2021 to get a confirmation vote when the senate returned in 2022. Either that or Schumer should keep the senate in session over the weekend or into next week to get Aframe & the blue state & DC nominees confirmed.

      Like

    • Joe's avatar

      It’s going to be fascinating to see what they do.

      If the session gets extended another week to work on Ukraine, my guess is they will try to work in Kolar and Aframe at the back half of next week and then call it a day after they get the Ukraine bill done.

      If next week is really it, then I’d think they’ll try to end with a big flurry of district court judges.

      Personally I think I would prefer the former just because district judges are so much easier to schedule and confirm.

      Like

  7. Rick's avatar

    I really hope that they can get thru the 16 or so nominees awaiting a final floor vote. Why make them go thru the SJC again, it’s more work for them and it just would be a needless delay.

    You figure the Florida and South Carolina District Court nominees won’t have the Committee vote until 2024 along with the nominees from the upcoming hearing on Wed 12-13. So that’s already 12 more nominees or so that they’ll need to vote on come 2024

    Like

  9. Gavi's avatar

    Wow.
    I am almost always reflexively against sending the elderly to the bench, But this nominee blows that preference wide open. Someone above said if this nominee isn’t an A+ then no one else is. I totally agree. This nominee has helped to move the law in a progressive direction in at least two countries.

    I only have three more things to ask of her 1: take the same approach to the bench 2: don’t die during a Republican presidency; 3: don’t retire during a Republican presidency. Though I don’t know how much control she has over some of these.

    I don’t agree much with @Mitch, but I agree that Berner is a 50-50 nominee. I don’t expect Collins, Murkowski, or Manchin to support her, and I don’t care.
    When confirmed, she might rocket up to be my favorite Biden appeals court appointee.

    Liked by 3 people

    • Frank's avatar

      Only you would call someone who is only in their 50s elderly, barring some medical condition she almost certainly will be on the bench for years to come upon confirmation. There would be nothing wrong with her doing either of the last two things you “ask”, although I hope she actually abides to the rule of law and refrains from activism on the court (which I have some doubts about and will certainly be brought up at her hearing). I do agree with you and Mitch that she won’t get Manchin’s vote nor any Republican.

      On another hand, I never want “aangren” to whine and cry again about Biden not nominating anyone who previously worked for Planned Parenthood (although I’m sure he’ll find something else to whine and cry about Biden for).

      Like

  10. Pj91's avatar

    I grade nominees not based on ideology but on effectiveness. I would put some of the more effective liberal judges historically as:

    David bazelon
    Skelky wright
    Robert katzmann
    David tatel
    Patricia wald

    I don’t see berner having the influence as those ones did. So I’ll give her a b

    Like

    • Gavi's avatar

      I’m sorry but this is truly absorb. How can how possibly predict the future to comment on how influential they think a job will be?
      You say you grade on effectiveness? How many judicial nominees do you know that has shifted the law as counsel or plaintiff as much as Berner, in as many countries as before taking the bench?
      We can grade nominees whoever we see fit, but we should make sure it’s consistent with what we say we’re doing/how we got there.

      Liked by 1 person

    • Gavi's avatar

      @Pj91
      I’m sorry but this is truly absurd. How can anyone possibly predict the future to comment on how influential they think a judge will be?
      You say you grade on effectiveness? How many judicial nominees do you know that’s shifted the law as counsel or plaintiff as much as Berner, in as many countries as she has, before taking the bench? What did those judges you listed have on their resume as *nominees* that Berner doesn’t? Upon their nomination, I assume you foresaw that they would be influential on the courts.
      We can grade nominees however we see fit, but we should make sure it’s consistent with what we say we’re doing/how we got there.

      Liked by 1 person

    • pj91's avatar

      @Jamie – you’re probably right on Bazelon. He was known to be a “mob lawyer” before his appointment to the dc circuit.

      Finding a nominee to own the other side can be fun, but those types aren’t as influential. Like Kyle Duncan doesn’t strike me as a future JHW or Jeff Sutton.

      Like

      • Jamie's avatar

        If we are honest, Bazelon was a political appointment. AG Tom Clark and J. Edgar Hoover wanted him on the bench and they pushed for it until Truman put him there. He didn’t really have much of a liberal record, and he didn’t actually go to law school (he read law). The actual progressives of the day like Harold Ickes and the IL senator Paul Douglas saw him as unqualified. I don’t think anyone expected him to do more than just uphold the policies of Democratic administrations.

        Like

      • dequanhargrove's avatar

        I don’t know anything about judge Bazelon but I love reading from those of you that do. Really some great additions to this blog over the past month or so. I’m pretty well versed in the judiciary since I became interested in it after Bush v Gore, but not as well versed in it before.

        Also interesting Bazelon only read law & didn’t go to law school. I would love to know who was the last circuit court judge to not have graduated law school if anybody knows.

        Like

  11. Jamie's avatar

    Outstanding nominee. Although she could have been nominated to the DC Circuit instead.
    Berner is probably the most liberal nominee to the federal courts this century. I can’t think of one more so, not even Dale Ho, Rachel Bloomekatz or Jennifer Sung. But yeah, Berner is going to blow the minds of the GOP senators on the committee. Her entire background, LGBT status and her wife’s representation of Blasey Ford, etc. is what you’d come up with if you designed a “own the GOP” nominee in a lab.
    Will it be a 50/50 vote? I don’t know. I wouldn’t rule out Murkowski or Manchin voting for her if she says what she needs to say in the committee about respecting the Dobbs precedent.

    Liked by 2 people

    • dequanhargrove's avatar

      @Jaime

      I agree. If Berner was 10 years younger, I would say she’s the best Democrat appointment to the federal bench in my lifetime, circuit or district court. Her age is the only slight drawback on her & even still in her late 50’s she’s an A+. Truly an amazing nominee. She was on my initial list of nominees in my letter to The White House back in 2021 & I couldn’t be happier she was finally nominated.

      Like

      • Ethan's avatar

        I would’ve slightly preferred Jessie Weber (born c. 1983) since she’s younger, is just as progressive, and is also Baltimore based (and the dispute over whether nominee should be from the Baltimore area or the DC suburbs was the reason it took so long for a nominee to be named). Weber is young enough to be considered if Niemeyer leaves the bench under a Democrat (voluntarily or not).

        Like

      • dequanhargrove's avatar

        My fear is knowing Cardin, if Biden didn’t get his pick with Berner, the pick might have been somebody worse. But Jessie Weber would also be a phenomenal pick. Now that there’s another district court pick, perhaps they can see her up for the 4th in the future with that seat for now. Although my guess would be Cardin will have heavy influence over the vacancy since this will be his last seat to fill before retiring.

        Like

  12. tsb1991's avatar

    With all of the talk about Aframe and getting him confirmed over the holidays, do we really think we’re going to need 50 votes + the VP to confirm him, even though was a party-line vote in the SJC? He wasn’t peppered at his hearing the same way Bloomekatz, Abudu, Ho, etc were, I’d be surprised if Manchin didn’t support him. There’s always the possibility he gets Collins and Murkowski too. When it was widely assumed Rikelman was going to need 50 + the VP to confirm, I honestly didn’t rule out Collins supporting her (since she could point to voting to confirm the lawyer who argued Dobbs to SCOTUS to try to portray herself as pro-choice AND since the First Circuit is also her appeals court, so she had more of a stake in it). Manchin’s vote IMO was more in question than Collins was for Rikelman, going back to her confirmation vote.

    Maybe Collins supports Aframe to the First Circuit since A) Again, it is her appeals court and B) A courtesy/deference to New Hampshire’s Senators who are next door to Maine? (Not sure what her relationship with Hassan and Shaheen are, if that means anything)

    How much of Aframe’s party-line vote in the SJC was just Republicans rage-voting no to everything in that meeting? I was a little surprised he turned out to be a party-line in all honesty, same with Kiel.

    Liked by 2 people

    • pj91's avatar

      isn’t Dana Remus from New Hampshire? Biden could have nominated her to the seat but maybe she didn’t want it.

      As I said a few days ago, I also think Noah Feldman would have been a better pick than Rickelman for the first. He probably would have more of a Boudin-like influence on the first.

      Liked by 1 person

      • dequanhargrove's avatar

        Dana Remus was born in New Hampshire but I don’t believe she has close ties to their anymore. The New Hampshire senators probably wanted somebody with close ties to the state. Besides I’m happy we got Seth Arame instead of her anyway.

        I don’t know much about Noah Feldman. I’m really happy with Julie Rickelman however. I’m happy both her & some time next year Berner will be two abortion rights circuit court judges Biden put on the bench. I would like for him to put a man from that field on the bench as well. It shouldn’t be just woman that fight for woman’s rights.

        Speaking of woman’s rights, the Texas Supreme Court just put a stop to the ruling that allowed Katie Cox to have an abortion. That is so wrong. I know ultimately Cox probably has the means to travel to another state to get one but so many others don’t have that option. These MAGA Republicans need to be voted out of office.

        Liked by 1 person

      • pj91's avatar

        @Dequan –

        I sort of feel that unless the senate map starts looking better, you need to be as stealthy as possible. To use a crude example, there’s a reason Paul Bernardo brought his wife/gf with him in the car, because it allowed people to let there guard down.

        Considering that Remus was an Alito clerk and considering that most of his other clerks are fellow troglodytes, I find it impressive she got hired by him. She also said nice things about Andy Oldham back in 2018 when he was up for nomination (he was a clerk for him the same year).

        Noah Feldman is a Harvard professor and clerked for Souter the same year Barrett clerked for Scalia. He’s said nice things about her, despite him being a generic living constitutionalist.

        Liked by 1 person

      • Jamie's avatar

        Yeah no thanks on Noah Feldman. He strongly endorsed Barrett for SCOTUS, which goes well beyond “said nice things about her”. At the very least you could have opposed the nomination due to its timing. I don’t trust someone like that on anything. And Feldman has other conservative positions from what I remember, so it’s not like he’s better that Rikelman or Bessie Dewar.
        I will say that I disagree with the rejection of Sandra Glover for CT-SC for supporting Barrett to the 7th Circuit. Endorsing her for the 7th Circuit is not at the same level.

        Also people on the left are way too pessimistic about our chances of holding the Senate (like 2022). Both Brown and Tester are going to run way ahead of the baseline in their states, and nor is Ted Cruz is anything near safe. Many things will continue to hurt him, Cancun Cruz and the Katie Cox situation among them. It wouldn’t surprise me if Collin Allred finished the job that Beto almost did.

        Liked by 2 people

      • Ryan J's avatar

        Guido Calabresi endorsed Clarence Thomas for SCOTUS because Thomas was Calabresi’s former student. Calabresi became a judge 3 years later and has been a good, liberal judge. I can’t really blame Feldman or Calabresi since it would be hard to oppose the nomination of a friend/colleague/student to SCOTUS (I assume that Calabresi thought of Thomas as a good student and Feldman/Barrett were cordial).

        If he has other conservative positions, then that could be a reason to oppose him.

        Liked by 1 person

      • Jamie's avatar

        I especially disagree in this circumstance. All Feldman had to say was he cannot support anyone so close to the election. He could have added that Barrett was “well qualified” and he would support her if Trump is re-elected, but the fact he gave a blanket strong endorsement should be held against him.
        And 1991 was also a different time. At this point, I would hold it against anyone who supported Kav after Ford’s statement came out and Barrett for any reason.

        Like

    • Gavi's avatar

      That doesn’t prove much, though. Senior judges still have clerks. Many judges maintain their pace of hiring future clerks only to still go senior for those years.

      But to the larger point, he’s almost 87. If he doesn’t go senior within Biden’s presidency (however much of that is left), Republicans may luck into picking his replacement. Unless he’s another Judge Newman in the making.

      Like

    • keystone's avatar

      @joe

      From the Cornell School of law “Federal judges hire year round and on a wide variety of timetables. It is safe to say that most clerks begin work in August or September each year. Some federal judges are hiring clerks 18 months to three years in advance of their start dates.”

      @Gavi

      In addition to Newman and Dyk, Alan David Lourie turns 89 in January. 25% of that court is over 86 years.

      I’m not really sure what a Federalist Society approach to patent law would be, but I’m not sure I want to find out.

      Liked by 3 people

    • star0garnet's avatar

      Among judges that use OSCAR, circuit judges post clerkships an average of 10 months before their application deadline and 23 months before the start of the clerkship; for district judges those figures are 5 and 13 months. The worst I’ve seen have been have ben Raymond Lohier and Don Willett, whose deadlines for 2026-7 clerkships were in December 2022 and March 2023. Dyk has previously been in the next-worst tier (2020-1 clerkship deadline in September 2017); he’s also been at the opposite end, with his 2023-4 and 2024-5 clerkship deadlines the day before the clerkships start.

      Liked by 1 person

      • Ethan's avatar

        @star0garnet,
        On OSCAR, there isn’t by chance a way to see the names of clerks judges have hired, is there? There’s a guy I went to Emory University with, who later went to Stanford Law, who is now clerking on the 2nd circuit per LinkedIn. When I asked him which judge, he acknowledged but didn’t reply. I’m sure it’s one of the more liberal judges. Wouldn’t surprise me if it’s Myrna Perez. Wouldn’t surprise me if he goes on to clerk for SCOTUS. I knew he was going to far since he was an RA, a tour guide, and SGA President at Emory. I remember a class we both had where he wrote about public defenders as a profession.

        Liked by 1 person

      • Ethan's avatar

        @star0garnet,

        It never occurred to me that the judge asking him not to disclose is the reason he didn’t. I initially just thought that he just didn’t put it because “United States Court of Appeals for the Second Circuit” is a “company” on LinkedIn but individual judges don’t have their own company pages.

        Like

  19. CJ's avatar

    I decided to do some math and theoretical thinking/research to see what the partisan makeup of the Circuit Courts would be at the end of Obama’s term (2017), the end of Trump’s term (2021), and now would be if the Republican Senate had confirmed all of Obama’s Circuit Court nominees in 2015 and 2016. If the GOP Senate blockade didn’t have any effect on a Circuit, “No Change” will be put.

    1st CCA: No Change

    2nd CCA: No Change

    3rd CCA: 2017: Dem 8 – 5 (1 vac)
    2021: Split 7 – 7
    2023: Dem 7 – 6 (1 vac)

    4th CCA: No Change

    5th CCA: No Change (The GOP Texas Senators refused to work with Obama fill in a vacancy on the Circuit, so no nominee was named by Obama, if this was about blue slips, this would be a different story)

    6th CCA: 2017: Rep 10 – 6
    2021: Rep 10 – 6
    2023: Rep 9 – 7

    7th CCA: 2017: Rep 6 – 5
    2021: Rep 6 – 5
    2023: Dem 6 – 4 (1 vac)

    8th CCA: 2017: Rep 8 – 2 (1 vac)
    2021: Rep 9 – 2
    2023: Rep 9 – 2

    9th CCA: 2017: Dem 19 – 7 (4 vac)
    2021: Dem 17 – 12
    2023: Dem 17 – 12

    10th CCA: No Change

    11th CCA: 2017: Dem 9 – 3
    2021: Split 6 – 6
    2023: Split 6 – 6

    DC and Federal CCA: No Change

    Liked by 3 people

      • dequanhargrove's avatar

        @shawnee68

        That’s awesome. I am loving Newsom more & more each day. He is going on Fox News, debating DeSantis & unapologetically defending Democrats & their record. There is so much talent on the Democrat bench for 2028 & he certainly is at the forefront.

        @Jaime

        I agree with everything you said with the slight exception of Blackburn. I do think she is the clear favorite but I would still invest in Tennessee since her opponent has name recognition & has gotten & will continue to get a lot of free press. That along with a possible Blackburn slip up could be the recipe for an upset. I probably wouldn’t invest too much into Arkansas & Missouri though despite what Trump said.

        Liked by 1 person

    • Jamie's avatar

      Texas absolutely. As I said above there is a serious chance that Cruz loses. It is less likely than Brown or Tester holding on, but it would not be a surprise to me if Colin Allred finishes the job that Beto started.
      Florida and Missouri are longshots. Still worthy of some investment though with a credible candidate. Hawley might be a little vulnerable due to the abortion ballot measure. Tenn. is a waste of time, Blackburn is safe. Trump’s musings don’t have a whole lot of value though.

      But I am tired of people who claim that the Senate is a goner for Democrats. They are usually the same people who claimed that in 2022 and said that a red wave was inevitable. It was not. As one analyst said, if the Democrats in the House believed their own polling rather than the red wave crap that the media spewed, we would have held the House.

      Liked by 1 person

  21. Aiden's avatar

    As ive mentioned multiple times, i am very nervous about Judge Johnstones Ideology. However in a small glimmer of hope. Today in two cases he ruled for the petitioners in immigration cases, invoking dissents from judge bress.
    I honeslty would of expected to be pretty conservative on immigration but we will see.
    Hopefully this is a small sign on hope.

    One of the cases is;

    Click to access 22-820.pdf

    Liked by 1 person

      • CJ's avatar

        TBH, I think that Johnstone will likely be a moderate liberal. He worked under a Democratic Attorney General, amd Daines opposed his nomination,but he is from Montana, and had to represent the generally conservative state in court. I seriously doubt Biden would’ve nominated him if he was a conservative, but I think he’s very likely to be the most moderate nominee Biden put on the 9th CCA.

        Liked by 2 people

  22. Daisyoodle's avatar

    It is pretty pointless to invest in Missouri or Tennessee. If Democrats couldn’t win in 2018 with much stronger candidates in a blue-wave midterm, then there’s practically no chance in a competitive presidential race. For the reach seats, I would focus on Texas and maybe Florida.

    Liked by 1 person

  23. Daisyoodle's avatar

    It is still Missouri in a presidential race. Getting close is one thing, but winning is nearly impossible. I wish we lived in a world where Missouri is competitive, but all the states Democrats held on to in 2022 were Biden states.

    Like

    • Jamie's avatar

      Given that a generic Republican AG won by 13% in 2022, I’d guess that Hawley would have won by 8-10%. That’s close enough that with have a credible candidate Dems should compete. It is a longshot, but it is not impossible especially with an abortion ballot measure that is likely to pass.
      As far as it being a Presidential race, Jason Kander lost by less than 3% while Trump was winning by 18% in 2016.

      Like

    • dequanhargrove's avatar

      @Mitch

      I used to post the pictures right after they had a hearing but after the entire debacle about them not being notable, I lost interest in Wikipedia & stopped. I checked last week for something else & breezed through a couple nominees pages & it appears other users were updating their pictures but the Letsrun idiot got them banned from Wikipedia. I guess there is a new rule you can’t even post their pictures until they are confirmed now.

      You know the funny thing, Wikipedia still sends me request begging to donate money to them. I probably wouldn’t mind but if they have complete idiots allowed to make major rule changes loke that then I refuse to donate to them… Lol

      Like

    • keystone's avatar

      I mean, it’s not the worst idea to put Senator Kennedy’s nominees up for a vote to get him in a a good mood ahead of the Mangi and Berner hearings.

      The man can be a jerk sometimes in hearings, but he can also be surprisingly fair at time.

      Plus they still need to get him to recommend nominees for two more seats.

      Liked by 1 person

      • dequanhargrove's avatar

        I don’t mind confirming some red state nominees if they are going to stay in session next week. But if this week is it, they should have confirmed all bleu state & DC nominees so the red state nominees can be renominated next year. They will all have at least the 51 Democrat plus two home state Republican senators vote so regardless of attendance issues they still would get confirmed.

        Like

  29. raylodato's avatar

    A little disappointed that Edwards and Long will need cloture votes. I was hoping that they’d at least move right to confirmation, if not voice votes, given the support of both LA Senators. Hope some of the other red-state noms and the IT folks can move quickly so we can clear the blue-staters.

    Liked by 1 person

    • Aiden's avatar

      I agree, i am just as suprised and disappointed. I also really dont understand why, i felt like their would of being alot more deference to the LA senators in the republican party considering their status etc. Also there are so unpartisan, that if it ends up being hawley voting no. Then its just ridiculous

      Like

    • Thomas's avatar

      Both LA vacancies are judicial emergencies, the EDLA is probably the court with the highest average age of its size, with very few senior judges in support of the active ones. At the WDLA there is also the unique chance to replace a Trump appointee.
      Biden has just appointed district judges in twenty-five states after Hawaii joined the club last week so far, so there is space for more, especially in red states.

      Liked by 1 person

  30. Aiden's avatar

    @Jamie
    In regards to Sandra Glover, the barrett saga only made up a portion of the legislatures basis for rejecting her. A serious concern for the legislature was her very small if any, state court practise. She almost exclusively practised in federal court and the committee wanted someone with deep understanding of the whole conneticut state court system, she didnt..

    Liked by 1 person

  31. Gavi's avatar

    I’m always amazed how much you folks are always surprised and allowing yourselves to be disappointed in how Schumer sets up confirmation votes. It’s like unilaterally setting up expectations for things waaaay outside your control then being bummed out when those expectations aren’t met.
    For weeks people here were assuming and, dear I say it, hoping that Schumer would set up all the red state nominees for an end-of-year vote-a-rama.

    Why do you insist on believing that Republicans are in a rush to confirm Biden judges? It doesn’t matter if those are red state nominees, and the precious little voice votes prove that.

    Here’s my advice, take it or leave it:
    It’s highly unlikely that Schumer is reading this so there’s no way he can be on your timeline.
    Spare yourselves some mental anguish and accept that Schumer sucks at scheduling or just doesn’t care about confirmation of judges as much as he says he does.
    Trust me, it’s always better to be pleasantly surprised than constantly disappointed.

    Like

    • dequanhargrove's avatar

      The way I see it, I was less concerned about an end of the year vote-a-rama & more concerned with what nominees will be returned & have to be renominated. That’s why I was hoping it would continue to be all blue state & DC nominees.

      But nobody can say those off us that said Schumer should continue to only focus on non-red state district court nominees was wrong. The last red district court nominee to be confirmed was David Pappillion on May 30th. The earliest Edwards and/or Long can be confirmed is December 13th. Six months & 13 days I think counts as a win… Lol

      Like

  32. keystone's avatar

    Wow. Texas Supreme Court ruled against Kate Cox in her case to receive an abortion to health issues. Guessing that will be a big news story this week.

    If the Republicans are smart, they’ll tread lightly around Nicole Berner’s Planned Parenthood work.

    Liked by 1 person

    • dequanhargrove's avatar

      CNN reported earlier today that Cox was leaving the state to obtain her abortion. I think Biden should have flown into Texas with Air Force One, picked Cox & her family up & taken her to a blue state with a reasonably close senate or governor’s race next year like Nevada. Biden & Democrats do a lot of good things for Americans, but many don’t feel it. They need to start doing better tat optics.

      Biden being the first president to walk a picket line is a good example of what I’m talking about, but he needs to do more. The optics of Biden dropping everything (Of course he isn’t really dropping anything but again optics) to go rescue a woman whose life depends on her having an abortion from a red state to bring her to a blue state, writes its own commercials.

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  33. dequanhargrove's avatar

    Harris & Air Force Two would have been fine. And if not Cox, there’s credibly another pregnant red state resident that would take that opportunity. And definitely some who unlike Cox, probably lacks the resources to flea the state easily.

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  34. raylodato's avatar

    @Gavi: I think you’re seriously misreading the arguments that some of us are making. We’re not saying the Republicans are eager to confirm Biden’s nominees in their states, but that we expected Schumer to use the Democratic majority to confirm blue-state nominees when he had full attendance.

    This would leave red-state nominees for the end of the session and, since red-state nominees who were on the floor had the support of their Senators (and weren’t that liberal), other R Senators would defer to them and get them passed.

    I do agree with you and have said here before that Schumer’s rhetoric about how important confirming judges is to him is not matched by the scheduling he does. But there was a path to getting the nominees now on the floor confirmed, and while it wasn’t terribly unrealistic, unless they postpone the end of session, it’s not going to happen.

    Liked by 1 person

  35. Aiden's avatar

    Just a question regarding the new Mass SJC appointment, what about Dewar is progressive and why should she have being appointed instead of rikelman. I dont see her being a contender all that much anyway for the SCOTUs even if she was on the 1st. rikelman also seems more progressive.

    Liked by 1 person

      • Jamie's avatar

        She’s not POC, but she is LGBTQ and is a decade younger than Rikelman. I expect the next Democratic appointment to SCOTUS to be LGBTQ if possible.
        Right now the favorite is Alison Nathan, but if the appointment is later this decade, Dewar would have provided another option. If Sotomayor retires, expect Monica Marquez, a Latina LGBTQ justice on the Colorado SC to get some consideration.

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  36. Aiden's avatar

    If Tymkovich goes senior, hopefully marquez is a lead contender then. I’ve noticed that biden hasn’t really nominated any appellate judges from the state supreme courts. I feel like that was more common under trump etc

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    • dawsont825's avatar

      Wasn’t Beth Robinson (2nd CCA) nominated straight from the Vermont Supreme Court? Or was she a retired former state supreme court justice before being nominated and confirmed?

      I was also going to comment that Adrienne Nelson from the Oregon Supreme Court was nominated while she was a sitting member of the court, but she was ultimately nominated to the U.S. District Court (quite peculiar to hear appeals from the highest court in the state to then be a trial court judge federally)

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