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Commentary :: Human Rights
Devaney on Berman Nomination
27 Feb 2014
Published Feb 26, 2014 in the Newton TAB:


As Governor’s Councilor, I must address some very misleading information concerning Joseph Berman’s nomination for Superior Court judgeship. I take no joy in this.

Following Berman’s Nov. 13 hearing, five of eight Councilors advised Gov. Patrick in writing that they would vote against Berman’s nomination. The Governor has not allowed the vote to be taken for three months now.

Councilor Jubinville asked Berman, who was under oath, whether he had contacted any official or candidate to lobby the councilors on his behalf; including anyone on his $110,000 political donor list. He replied "no." The question was asked again. Berman replied: "Absolutely not." When questioned again by Councilor Caissie, Berman replied: "Oh, I didn’t know you meant today?" He admitted calling Congressional candidate Katherine Clark that very morning to call councilors Albano and Jubinville. Why the lies? Honesty is paramount for a judge. Berman has contributed $3,600 to Clark. Berman stated Sen. Clark agreed to make calls.

After Berman was not approved for a District Court judgeship by Judicial Nominating Commission in 2004, he gave $110,000 in campaign contributions to State and Federal candidates in addition to fundraising right up to the present application for Superior Court. The timing and size of these contributions have understandably created a public perception of improper influence in his pursuit of a judgeship.

Berman lacks criminal trial experience in Superior court. He has done nothing to educate himself on criminal law as he admitted. Councilor Jubinville asked how many trials he has had in District Court. He replied: "I think I had one or two."

The majority of Councilors believe Berman’s deportment at the hearing was unacceptable for a Judge.

Councilor Jubinville asked Berman, "In your opinion, is drug addiction medical or criminal?" Berman shot back sarcastically, "I’m not a doctor" and added, "No one in my family is drug addicted." Respectful demeanor and composed temperament on the bench are essential. Berman’s lack of knowledge and experience in this crucial legal area is of significant concern to council majority.

When nominees appear before the Council, their presentation concerns their qualification to be a judge. Berman is the only nominee who boasted about his political organizational skills. He spoke about running offices of candidates, organizing fundraising, organizing workers, "strategizing with people."

Are political skills a quality to look for in a judge? Berman has definitely proven his political skills in his ongoing politicking for this judgeship. I know of people he has lobbied. However, solid and relevant legal experience, not campaign experience, is what the public and governor’s councilors expect in a judge.

Regarding National Anti-Defamation League (ADL) and Armenian Genocide recognition: I fault Berman, 19 year member, ADL New England and National Commissioner, for never publicly speaking out against the National ADL’s direct collaboration with the Turkish government against genocide recognition long before, during and after the issue broke in 2007, as he acknowledged at his hearing.

On Aug.14, 2007, after learning of ADL’s years of successful lobbying in defeating Congressional Resolutions recognizing the Armenian Genocide, I authored a proclamation to withdraw Watertown from the ADL’s "No place for hate" program. I won support of many communities who also withdrew, including Newton. Mayor Cohen publicly spoke out strongly against the ADL’s discrimination against the Armenians.

Berman neither spoke out publicly nor resigned. New England ADL Director Andrew Tarsy spoke out publicly and honestly and as a result was fired. Contrastly (sic), Berman received leadership awards from the ADL.

In 2007, prominent ADL members resigned including Stewart L. Cohen and Boston City Councilor Mike Ross, whose father survived concentration camps in the Holocaust. Many principled Jewish Americans including rabbis spoke out publicly as well. I stated that if I was a member of an organization that opposed a Holocaust resolution and did not recognize it as a holocaust I would resign.

The National ADL has still not unambiguously acknowledged the Armenian Genocide. New England ADL Director Derek Shulman said in 2012 that the ADL will not support a Congressional Resolution on the Armenian Genocide.

Finally, some media took my comment about the ADL out of context. Please listen to tape of the hearing at the Governor’s Council Office. At conclusion of the hearing, I stated that though I have a "bias" against the ADL for depriving the Armenians of their history, I would have an "open mind regarding Berman."

I am proud of the unbiased attention and respect that Councilors and I have for nominees such as Berman.


Marilyn M. Petitto Devaney is the Governor’s Councilor from District 4, which includes Newton, MA.
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Re: Devaney on Berman Nomination
01 Mar 2014
Why I’m not voting to confirm Joseph Berman’s nomination

Lawyers Weekly inaccurately asserted in an editorial that the Governor’s Council refused to confirm Joseph Berman’s nomination to the Superior Court because of his leadership role in an organization that was slow to acknowledge and denounce the Armenian Genocide (“Governor’s Council reliance on stereotypes crosses line,” Nov. 25). But that is not the reason I won’t be giving Gov. Deval Patrick my advice and consent for Berman’s nomination.

I have tried to understand the larger picture of Joseph Berman. I have studied his resume and application to become a judge, talked to him personally, listened to his many admirers and detractors, and witnessed his own performance during the council’s public hearing. And, cumulatively, I am convinced that Berman is not qualified to sit on the Superior Court.

For me, there are three problems with this nomination. He is haunted by a negative public perception because he has contributed so much money to Democratic campaigns. He states that he has no criminal trial experience in Superior Court. And he admits not knowing a thing about addiction, which is one of the largest issues he would have dealt with as a Superior Court judge.

First, it should be noted that the Governor’s Council is not the first government body to raise questions about Berman’s qualifications. He went before the Judicial Nominating Commission in 2004 and was never recommended for nomination.

Since then, Berman has increased his Democratic campaign donations to over $100,000. His confirmation by the Governor’s Council would leave the public perception, fairly or unfairly, that his large donations purchased him a judgeship. Worse, this negative perception would diminish his credibility as a judge and demean our court system.

At the confirmation hearing in November, when Berman was questioned by a councilor about whether he asked anyone to lobby councilors on his behalf, he denied that he had. He was less than candid.

When he was questioned further by another councilor, he finally admitted to asking a prominent political official to pressure me to vote in his favor. What should we read into this about Berman’s integrity?

Further, Berman admitted he had no criminal experience in the Superior Court and relatively none in any other court. Yet he has applied to be a Superior Court judge, someone entrusted with ruling on the most serious of all crimes including murder, rape and sophisticated drug rings.

Some people have indicated that we should allow Berman to learn while he is on the job. A judge’s bench is akin to an operating room for doctors. Who in his right mind would allow a doctor in training to perform his surgery? Judges make life-altering decisions. The fact that Berman could need on-the-job training confirms he is not ready to be a Superior Court judge.

Berman also said that he has no knowledge of addiction. He said he knows nothing about the heroin epidemic plaguing the commonwealth because none of his relatives have had to struggle against it.

While I find him very lucky, I also find it unbelievable that a man of 52 years has never been exposed to the prevalence of this disease. In my experience, it is imperative that judges have a balanced, compassionate perspective on this crucial issue. In my opinion, the overwhelming majority of criminal cases that appear on court dockets are the result of abuse and dependence on street drugs, club drugs, prescription drugs and alcohol.

When I pressed Berman on his lack of knowledge, he responded with a flippant “Mr. Jubinville, I am not a doctor.” His answer demonstrates that he does not believe it’s the job of a judge to find ways to help those addicted. And let me assure you, judges who think similarly are not part of the solution; they are part of the problem. Their judgment is typically to commit to our already overcrowded prison systems at a tremendous cost to the taxpayers, rather than to explore treatment and reduce recidivism.

Lastly, Berman was arrogant in private to councilors before his hearing and was equally arrogant at his public hearing. This is a problem that citizens and lawyers encounter with far too much frequency in courtrooms today. In my experience, awarding a person with a job that guarantees them an income until they reach the mandatory retirement age of 70 does not abate this character flaw. It only makes it worse.

In the past, the Governor’s Council has been criticized for being too eager to endorse the governor’s judicial choices. But now that this council has established itself as an independent body instead of a gubernatorial rubber stamp, it is facing withering criticism. The council, in my view, deserves credit — not condemnation — for insisting that the Patrick administration up its game and select qualified nominees.

I have been most disappointed in Lawyers Weekly’s recent editorial as it wrongly clustered all of the councilors’ concerns about Berman under the umbrella of his affiliation with the ADL and his work in Guantanamo Bay.

If Lawyers Weekly’s Board of Editors is going to write critical editorials on any topic, please, do yourselves and your readers a favor: First gather all the facts so that you can make an informed judgment. I, and fellow attorneys, expect more from an organization casting itself as a journal that strictly scrutinizes issues of grave importance to the legal community.

Maybe next time?

Robert L. Jubinville Jr. represents District 2 on the Governor’s Council. He is a Milton attorney.