WESTON RESIDENT GRILLED IN QUEST TO BECOME SUPERIOR COURT JUDGE
By Colleen Quinn
State House News Service
Posted Nov 14, 2013 @ 12:23 PM
Last update Nov 14, 2013 @ 01:42 PM
BOSTON – Attorney Joseph Berman, Gov. Deval Patrick’s nominee for a
Superior Court judgeship, came under fire Wednesday for his membership
in the Anti-Defamation League, $110,000 in campaign contributions,
and his representation of a prisoner at Guantanamo Bay detention camp.
At the start of the hearing, before his character witnesses finished
testifying, Berman was criticized for belonging to the ADL. Berman
is a board member of the New England chapter.
Councilor Marilyn Devaney called the ADL hypocritical because it
refuses to recognize the Armenian genocide by the Turks. She said she
has a bias against the ADL that she would be unable to put aside when
considering the nominee.
Councilor Jennie Caissie said she objects to letters the organization
writes to the U.S. Senate Judiciary Committee prior to judicial
candidate hearings. Caissie called the letters “bona fide litmus tests”
on issues ranging from abortion to the First Amendment. She said she
is troubled by the positions of the ADL, and criticized Berman for
not withdrawing from the group.
Caissie said she was concerned Berman would be an activist judge. “I
have said many times I don’t want ideologues on the bench,” she said.
Berman said if confirmed “I will check my ideology at the door.” He
said he has thought deeply about his ability to be an impartial judge,
and he tried to assure her he was not an ideologue.
“I am not going on the bench as an ADL judge . . . I am not there to
advance its agenda. I am there to be a judge, and that’s what I will
do,” Berman said.
Berman, a Weston resident who is a partner at the Boston law firm
Looney & Grossman, was questioned for more than four hours by the
eight-member panel that vets judicial nominees. He graduated from
Dartmouth College and received his law degree from The University of
Michigan Law School. His practice focuses on commercial litigation,
trying several cases in Superior Court each year.
Jeffrey Robbins, an attorney at the Boston law firm Mintz Levin and
a member of the ADL, said that Devaney and Berman “are exactly in
accord,” on the Armenian genocide, saying Berman led the effort of
the New England chapter in demanding the national organization change
its position.
Berman, 49, told councilors he was tempted to resign from the ADL, but
changed his mind because the organization does great work in so many
other areas. He thought one commission member resigning would not make
a difference, and decided to stay and work for change from the inside.
A spokesman for the ADL could not be reached for comment. The ADL
was founded in 1913 to fight anti-Semitism and all forms of bigotry
through information, education, legislation, and advocacy, according
to the organization’s website.
Robbins said he hoped Berman would not be held accountable for
decisions made by the national ADL. Caissie disagreed, saying people
are defined by the groups they belong to, their friends, and their
positions.
Councilor Robert Jubinville questioned why Berman did not leave the
organization after mounting an insurrection. “It would have made a
principled decision on your part,” Jubinville said.
Berman said it was a moral struggle and he ultimately decided the
benefits of staying outweighed leaving.
Jubinville said Berman’s membership in the ADL raises concerns about
his ideology, and how it might influence his decisions as a judge.
Berman said he would not be influenced, and added the ADL stands for
protecting people against discrimination.
Jubinville argued the position papers of the ADL on judicial candidates
point to an ideology, “and, you as a member take those, and champion
those,” he said.
Berman said he agrees with most of the positions the group takes,
except for the Armenian genocide, but it would not impact his
judgeship. Berman said he would follow the law to the best he could
interpret it.
“I can assure you councilor, I would decide cases based on the facts,”
he said.
Berman described himself an idealist who decided to go to law school
to change people’s lives. As a child, he said, he was inspired by the
character Atticus Finch in Harper Lee’s book “To Kill a Mockingbird.”
“I thought maybe you can change the world, or maybe you can change
just one life,” he said.
He said he is called to public service because he has been very lucky
in his life and wants to give back. His goal as a judge would be to
always be prepared, patient, and opened-minded, with an awareness of
how a judge’s decisions impact people’s lives, he told councilors.
His thoughts about the importance of keeping the judicial branch
independent led him to represent a prisoner at Guantanamo Bay.
Caissie questioned Berman about his decision to go to Guantanamo.
Berman said it was one of the cases he is most proud of in his career.
He represented one client at the camp, who refused to meet him. The
client was later released as part of an executive order by President
Obama.
“The issue was to me a constitutional issue and a civil rights issue,
which was depriving someone of their liberty without due process,”
Berman said. “There are people who ought to be there, probably for
the rest of their lives. But they are entitled to due process.”
Berman said he believes in the judicial system, and if the United
States is going to detain someone that person is entitled to due
process.
“It’s what makes us better than the terrorists,” Berman said.
Berman’s hefty political contributions also came up. Berman
acknowledged he has given approximately $110,000 in donations during
the last decade, exclusively to Democrats. He has given money to
Patrick, former Lt. Gov. Timothy Murray, Treasurer Steve Grossman
and Sen. Katherine Clark. In 2010, he gave $3,200 to the Democratic
State Committee.
Jubinville asked him if he thought the public would have the
perception that his large donations pushed him toward a judicial
nomination. Berman said he understands some might raise eyebrows, but
he said he would argue making contributions is almost counterproductive
to any judicial nomination because it becomes part of the discussion.
Berman said he donates money because he believes democracy is not a
spectator’s sport, adding that he does more than just give money. He
said he has held campaign signs on street corners, gone door to door
for candidates, and helped write campaign literature.
“We all do what we can do in our democracy. It is a First Amendment
right,” Berman said.
“People make political donations. Some decide at some point in their
life they want to become a judge,” he added.
Caissie charged that there was an uptick in his political donations
after 2004 – the first time he applied for a judgeship on the district
court bench. She asked how she could explain to constituents who are
skeptical about the $100,000 in campaign contributions, and might
think he “bought” the nomination.
She asked how much he has donated to charitable organizations this
year. He did not know the answer.
Councilor Michael Albano applauded Berman for taking political
positions and being actively involved. Albano said “of course” Berman
has an ideology, and suggested it was naïve to think judges do not
have political leanings. Albano said he was more interested in his
sentencing philosophy.
Berman said he was not a fan of mandatory minimums because of
infringements on judicial discretion.
Jubinville attempted to understand how Berman would treat defendants
addicted to drugs. Jubinville said he sees judges who do not understand
addiction, and when they put addicts in jail they are not helping
the person.
Jubinville asked him a hypothetical about what he would do when
a probation officer brings a defendant in who has failed a drug or
alcohol test, and the probation officer wants the judge to incarcerate
the person. Berman said he would hesitate to send the person to jail,
unless he could be sure they were going to get treatment.
Jubinville asked if he thinks the person addicted to drugs has a choice
or it is a medical problem. Berman said he thinks it is a little bit
of both. People make choices and they have to be held accountable,
Berman said.
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