The Very Good News

Labor lawyer and phenominee Nicole Berner was confirmed to the Fourth Circuit this week by a vote of 50 to 47. With legal experience spanning from labor law to reproductive rights, Berner is an outstanding addition to the federal judiciary — and her confirmation brings the total number of out LGBTQ+ judges confirmed under Biden to 11, the same as President Barack Obama confirmed over two terms. Judge Berner is only the third openly LGBTQ+ woman to serve as a federal appellate judge.  

Meanwhile, Judge Eumi Lee, another AFJ priority nominee, was confirmed slightly more narrowly — 50 to 49—to the U.S. District Court for the Northern District of California on Wednesday afternoon. Until her confirmation to the federal bench, Judge Lee sat on the Superior Court of California in Alameda County. Previously, Lee taught at the University of California College of Law in San Francisco. There, she directed the Individual Representation Clinic, which represented indigent and low-income individuals. 

More Good Things from the Hill

On Wednesday, the SJC held a nomination hearing for nominees Sparkle Sooknanan (D.D.C), a former Sotomayor clerk and Jones Day alumna; Angela M. Martinez (D. Ariz.); Krissa M. Lanham (D. Ariz.); Georgia Alexakis (N.D. Ill.); and, first among equals, Nancy L. Maldonado, currently on the Northern District Court for the District of Illinois, who is up for confirmation to the Seventh Circuit. 

Judge Maldonado is one of our priority nominees. She is a movement lawyer through-and-through with decades of experience in labor and employment law. AFJ first had the privilege of supporting Maldonado’s nomination to the federal bench in 2022 and we are thrilled to see a jurist of her caliber elevated to the appellate bench. Upon confirmation, Maldonado will be the first Latino judge to serve on the Seventh Circuit — just as she was on the district court. 

What’s Next: Reproductive Rights Under Fire 

On Tuesday, March 26, the Supreme Court will hear oral arguments in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine.  

Need a primer? We’ve got you covered: This landmark case concerns access to mifepristone, a medication used in more than half of abortions in the United States. The FDA first approved mifepristone for use in abortions in 2000. In the 24 years since, the FDA expanded access to the medication, proved safe over and over again, which is also used for miscarriage treatment.  

Originally, patients could only obtain the medication after three in-person visits to a doctor. After reviewing substantial evidence of the drug’s safety and efficacy, the FDA overturned the three-visit requirement and allowed mifepristone to be prescribed via telehealth. Last year, the Alliance for Hippocratic Medicine, a litigious anti-choice group, tried to backdate its objections to the medication, suing the FDA over its initial approval of the medication as well as recent regulations expanding access. 

A Reminder of Structural Obstacles 

Anti-choice activists, among others, have been forum-shopping — and judge-shopping for years, seeking out the most sympathetic — and least principled — jurists they could find to bring their oft-shaky claims. In the mifepristone case, they filed their suit against the FDA before Judge Mathew Kacsmaryk in the U.S. District Court for the Northern District of Texas 

More context? In 2023, the infamously anti-choice Judge Kacsmaryk ruled that the FDA erred by approving mifepristone in 2000 and issued a nationwide injunction on the medication. That same day, a Washington state district court judge ruled the opposite way, prompting the Supreme Court to issue a stay of Kacsmaryk’s ruling pending further litigation.  

On appeal, the Fifth Circuit limited Kacsmaryk’s holding, overturning the new regulations expanding access but letting the drug’s original approval stand. The March 26 arguments mark the next stage in this saga and the first time that the Supreme Court has ruled on a major abortion access issue since overturning Roe v. Wade. The Court’s opinion in the so-called ‘mife’ case will have huge implications for patients’ access to safe and effective reproductive health care nationwide. 

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