American Constitution Society
Nicole Berner, President Biden’s nominee to the Fourth Circuit Court of Appeals
On Wednesday, Joe Biden nominated Nicole Berner to the Fourth Circuit Court of Appeals, which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina. News articles noted that she would be the first openly LGBT member of that appeals court. The way in which Biden has rebalanced the courts after the succession of straight white males confirmed under Donald Trump is admirable. But in this case, that’s not the most distinguishing feature about Berner.
She currently serves as the general counsel for the Service Employees International Union, where she has worked since 2006. It would be difficult to find a more experienced labor lawyer elevated to a federal appeals court in the past several decades. This diversity of experience has been even more lacking in the federal judiciary. You need only look at the consistent victories for corporations and periodic losses for unions for proof of this.
A labor lawyer might look at a case like Loper Bright Enterprises v. Raimondo, which is at the Supreme Court this session and would overturn the precedent of “Chevron deference” (which grants regulatory agencies leeway to interpret statutes), very differently than a BigLaw partner at a corporate defense firm might, to use just one example.
They might also rule differently than some other judges nominated by President Biden now sitting on the federal bench. A review of nominees’ questions for the record show a lack of facility with questions of corporate power, for example, and recent rulings in merger cases, including the rejection of the Federal Trade Commission’s attempt to block Microsoft’s merger with Activision, came at the hand of Biden judges.
This desire for a more diverse court on the grounds of experience has been a demand from economic advocates throughout the Biden administration. Since getting a 51-vote majority not subject to the whims of Joe Manchin, Biden has delivered somewhat on this demand, with confirmations of judges like voting rights attorney Dale Ho, labor lawyer Casey Pitts, public defender Natasha Merle, and reproductive rights lawyer Julie Rikelman. But Berner’s selection is one of the bigger successes in that effort.
Members of Congress are asking for more. There still has not been any nomination of someone with a focus on competition policy. This week, 11 House Democrats, including House Judiciary Committee ranking Democrat Jerrold Nadler (D-NY) and Congressional Progressive Caucus chair Pramila Jayapal (D-WA), asked White House counsel Ed Siskel to make this a priority, citing the administration’s own priorities of seeking to “combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.”
The letter highlights the disconnect of hiring the best and brightest in the anti-monopoly movement as agency heads, like Lina Khan and Jonathan Kanter, but not applying that approach to the judiciary. “The antitrust laws enacted by Congress were squarely aimed at reining in the economic and political power of the monopolies and cartels of the day. Courts have since radically rewritten these laws in ways that undermine this congressional intent, including legitimizing the consumer welfare standard that was first popularized in the 1970s,” the authors note, explaining that concentration has spiked ever since.
Nadler, Jayapal, and their colleagues lay out how vetting judicial nominees can reverse this trend. Indeed, under Ronald Reagan, antitrust scholars like Robert Bork and Douglas Ginsburg were elevated to the circuit courts. The initial screening and evaluation for judicial nominees should include competition-related questions, they say, and efforts should be taken to find nominees with a background in antitrust law. These priorities should be made clear to senators, who play a major role in choosing judicial nominees.
“Specifically, nominees should be asked … which factors—aside from market share—should be considered in monopolization or monopsony cases; and what level of market share can demonstrate monopolization,” the letter reads. Biden nominees have had trouble with these very questions, which are asked of them in Senate Judiciary Committee vetting by Sen. Josh Hawley (R-MO).
Berner, the former SEIU counsel and Fourth Circuit nominee, doesn’t necessarily have that antitrust background. But she’s a lot closer than many of the other nominees who have gone through to the federal bench, and certainly represents a different talent pool than the usual set of corporate lawyers. We’ll see if the White House continues in that direction.
