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Superior Court nominee from Weston comes under fire in hearing

Posted by Your Town  November 13, 2013 05:55 PM

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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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