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As a longtime attorney for one of the nation’s largest corporations, Berner often opposes Republican policies and court decisions. He is work with information to the US Supreme Court on behalf of the SEIU in support of the Affordable Care Act, opposite former president Donald Trump’s Muslim ban and against a Colorado baker who refused to make wedding cakes for same-sex couples. SEIU supports higher minimum wages and opposes “right to work” laws that make it illegal in some states for unions to require all employees of a company to pay taxes.
President Biden appointed Berner to serve on the power court to handle federal appeals in Maryland, Virginia, West Virginia, North Carolina and South Carolina. The recommendation broke a long deadlock between the White House and the Senate that had left the seat open for more than a year. Few federal judges have experience representing unions, and Berner’s nomination was supported by progressive groups.
On Wednesday, he said he was “inspired” to become a lawyer while leading an organization in Israel that fights domestic violence. “I saw the power that the law can bring to protect those who cannot always protect themselves,” he said.
Sen. Lindsey O. Graham (SC), the top Republican on the committee, began the questioning on Wednesday by saying “supporting positions I don’t agree with … doesn’t invalidate,” before pressing him with proposals to increase worker representation on trade committees and unionize prison staff. These are all suggestions from a Harvard Law School’s program on increasing human resources where Berner was interviewed; he said he didn’t do any of the cases.
He and other Republicans also encouraged Berner to say in a speech that “at its core, the right-to-work movement is deeply discriminatory.”
“My state is a right-to-work state, and it goes to the Fourth Circuit,” Graham said.
Berner deviated when he tried to answer the question in a general statement rather than a simple proof or denial. “I’m not asking you about the situation, I’m not asking where you’re doing, I’m not asking you what you’ve done wearing that day,” said Sen. Tom Cotton (R-Ark.). “You said that the right-to-work movement is very discriminatory, yes or no?”
Berner said he did not have the text of the speech in front of him but he was speaking anecdotally. “I believe that people today who support right-to-work laws are not racist,” he said. Later, when a Democratic senator asked him to explain further, Berner said that the first advocates of “right-to-work” laws in the 1940s “argued that white workers should not be forced to have the same organization as Black people.”
Berner was also asked about his comments that he made to compare Senate Republicans with organizations that loot unions for only hearing testimony from one of the women who accused Kavanaugh of sexual assault. Berner’s wife, Debra Katz, represented Christine Blasey Ford, who told the Senate that Kavanaugh pinned her down on a bed and groped her at a party. the high school.
“Despite the fact that many women have incredulously accused Kavanaugh of assaulting them, Senate Republicans have allowed one woman to come forward to testify; they ignore or underestimate other defendants,” Berner said at the 2020 event. “The truth is that Dr. Ford was the only person who allowed Republicans to pretend that it was ‘he said, he said.'”
Berner replied that he was speaking for SEIU at the time. “I believe Justice Kavanaugh, like all other Supreme Court justices, was legally confirmed, and if I am confirmed, I will follow his views and the views of all the justices,” he said. “The role of a judge is a very different role than that of a lawyer.”
Republicans said Berner was inconsistent in his support for women, pointing to the case of a working woman who accused leader in the California SEIU association of sexual harassment and assault in 2018. The woman write to international leaders, and Berner responded that “because each member of SEIU hires its own staff and sets its own policies and procedures,” his office “has no direct role in investigating allegations or concerns that may arise from local unions regarding labor issues.” (The cry of the woman occupancy in 2020. The man accused of the assault was fired, but the president of the union, who was also accused of inappropriate behavior, was not).
When asked why he didn’t do more for the woman or push for accountability for the men involved, Berner replied that it was not his jurisdiction because they had their own jurisdiction. Local SEIU. “I’m not an advisor to the local union,” he said. “I am not responsible for, nor do I advocate on behalf of, local unions” unless specifically requested by SEIU leadership. “As a lawyer for my client I fought hard for my client,” he said.
Cotton also asked if, based on his position in the Colorado case, Berner would say that a Jewish baker should bake a cake for “Hamas reformers” who said “Palestine will be free.” from the river to the sea” and “a sword to the Star of David.”
Berner, who lived in Israel and said at the start of the trial that some of his family had traveled there to attend the trial, said he would appeal the Supreme Court’s decision not to Colorado baker should work for married couples. (When a similar question arose in the Supreme Court, a lawyer for Colorado said that the state law against discrimination does not apply to religion).
Jody Rabhan, chief policy officer for the National Council of Jewish Women, was at the Capitol to support Berner during the hearing.
“His thoughtful responses and the manner in which he answered questions, which at times were unpleasant, only demonstrated his outstanding judicial qualities and showed the type of judge he will be if confirmed to the Court. ,” he said.