Governor's Council Rejects Berman Nomination, Cites ADL Fiasco

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Governor's Council Rejects Berman Nomination, Cites ADL Fiasco

By Nanore Barsoumian

The Armenian Weekly

March 10, 2014

BOSTON, Mass. (A.W.)—The Governor’s Council rejected Gov. Deval Patrick’s nomination of attorney Joseph S. Berman to a Superior Court seat on March 5. Opposition to Berman stemmed from his leadership role in the Anti-Defamation League (ADL)—an organization that claims to fight discrimination but refuses to unambiguously recognize the Armenian Genocide—as well as the large amount of campaign contributions Berman had made in recent years, his inexperience in criminal court proceedings, and his representation of an inmate at Guantanamo Bay. Disappointed, Gov. Patrick reiterated that he believed Berman had the necessary qualifications for the position, and that he felt the Council’s decision was “unfair.”

The opposition was led by Councilor Marilyn Devaney, a Democrat from Watertown, who time and again highlighted Berman’s leadership position in the ADL as a member of both its regional and national boards, and his failure to publicly speak against his organization like others had done when it became clear that the ADL had been lobbying Congress against the recognition of the Armenian Genocide.

Berman needed the support of five out of the eight councilors, but the vote proved to be a tie. Councilors Robert Jubinville, Jennie Caissie, and Oliver Cipollini joined Devaney in opposing the nomination, while councilors Terrence Kennedy, Michael Albano, Christopher Iannella, and Eileen Duff voted for him.

Addressing the Council following the vote, Gov. Patrick said the Armenian Genocide is a historical fact that must neither be forgotten nor denied, according to the State House News Service. He added that Berman “acknowledges” the Armenian Genocide. As for the ADL, Gov. Patrick said the regional leadership had accomplished “too much good work for human rights in our community and beyond to cast every supporter aside,” adding, “We can be rigorous about evaluating prospective judges without attributing to them personally every view of a group to which they belong.”

Hearing and testimonies

On Feb. 26, a week before the vote, Berman faced a string of questions from the councilors, who also heard testimonies in support and opposition of the nomination.

Armenian American activist David Boyajian testified in opposition to Berman’s nomination. He spoke about Berman’s and the ADL’s credibility in light of the ADL’s stance towards the Armenian Genocide.

In his statement, Boyajian said, “Mr. Berman has been a member of the ADL for about 19 years, and an ADL National Commissioner since 2006. For 20 years and probably even longer, the ADL has been denying the factuality of the Armenian Genocide committed by Turkey… The ADL consciously and deliberately went out of its way to engage in anti-human rights activities directed against a particular ethnic group, namely Armenian Americans, who have never given the ADL any reason to do so. All those years, surely the New England ADL, including Mr. Berman, knew what the ADL was doing. Did they speak out? No.”

Boyajian further noted how the ADL has worked with Turkey to defeat Armenian Genocide resolutions in the U.S. Congress, adding, “Can you imagine any genuine human rights organization such as Amnesty International actively working against recognition of a proven genocide?”

Boyajian listed the names of former ADL members in the organization’s leadership who took a stand and as a result were either fired or resigned. “Mr. Berman never did anything about this… This goes to the heart of what it means to be an honest person, a moral person, a credible person, and a judge,” said Boyajian.

During the Nov. 13 hearing, when Councilor Jubinville asked Berman why he did not resign from the ADL, his response was, “I wrote a resignation letter in my head but didn’t write it because of all the good things the ADL does.”

In response to Boyajian’s testimony, Councilor Kennedy said he believes Berman to be highly qualified, and in reference to the ADL issue, added, “I don’t think it’s inconsistent to recognize the Armenian holocaust and to vote for Mr. Berman at the same time. I think he was very clear in his testimony that he tried to get the policy changed at the national level. I didn’t agree with my colleagues who voted against him. Should I resign from this board because I don’t agree with them? I think not.”

Kennedy said he believed Berman was trying to change the ADL from the inside “I recognize that might not be enough for you, but it might be for me, if we accept his statement as true...”

On the other hand, Councilor Caissie revealed she remained troubled by Berman’s position vis-a-vis ADL’s stance on the Armenian Genocide. She said truthfulness and veracity were important qualities in a judge.

“The issue of the ADL… goes to truthfulness in my mind in so far as when a nominee says that they led an ‘insurrection’ in a hotly political issue like that, and then they’re asked what they did, their answer under oath is that they ‘wrote a resignation letter in their head.’ [This] is not particularly persuasive for me or powerful or suggests a person of great conviction…” said Councilor Caissie.

In 2007, 12 Massachusetts municipalities cut ties with the ADL and its “No Place for Hate” Program, including Watertown, Belmont, Newton, Arlington, Northampton, Bedford, Lexington, Westwood, Medford, Needham, Newburyport, and Peabody, following broad-based community opposition as part of the “No Place for Denial” Campaign led by the Armenian National Committee (ANC) of Massachusetts.

Shortly after the ADL issued a “Statement on the Armenian Genocide,” stating that “The consequences of those actions were indeed tantamount to genocide.” Many found the statement inadequate, as the wording placed the issue of intent under question—a main factor in the 1948 UN Genocide Convention definition.

Those who testified in support of Berman included Woburn Superior Court Judge Bruce Henry who spoke positively about Berman’s demeanor and argued that criminal experience was not necessary for a Superior Court judge, as well as attorney Rodney Dowell, husband to Mass. Congresswoman Katherine Clark and Berman’s former law partner.

To note, during Berman’s first hearing, when the councilors asked whether Berman had contacted any of the politicians whose campaigns he had financially contributed to, Berman’s response was no. When further questioned, Berman revealed that he had in fact contacted Katherine Clark that morning and asked her to call councilors Albano and Jubinville. This revelation did not sit well with some who saw it as deception under oath, and was repeatedly noted during the Feb. 26 hearing, when Berman, in his own defense, attributed his initial response partly to a misunderstanding of the question, and partly to the fact that he had been friends with the Congresswoman since 1990, and saw her in that light.

In his testimony, Berman also revealed he had taken measures to gain more criminal law experience, including taking continuing-education classes and sitting in on court sessions. When the issue of his financial contributions to Democratic candidates surfaced, his contributions to charities were also noted, which far exceeded his political contributions. While the councilors commended his dedication to charity organizations, some voiced concerns regarding the political contributions, which they believed gave the impression—at least to the public—that Berman was in effect “purchasing” his Superior Court position, which could “diminish” both him as a judge and the judicial system.

Over 100 attorneys had signed a letter in support of Berman in the weeks leading to the hearing, including former Gov. William Weld, Attorney General candidate Warren Tolman, and former Attorney Generals James Shannon and Scott Harshbarger. However, some councilors noted that the letter was ineffective. Councilor Jubinville went further to say the letter might even be “counterproductive,” and noted that when he called some of the names on the list, they admitted not knowing Berman personally.

Berman was first questioned by the Governor’s Council on Nov. 13. The councilors were set to vote on the nominee on Nov. 20, however Gov. Patrick postponed the vote when it became apparent that five of the eight councilors would vote against Berman, noting, “I am going to work hard to get the votes. I have not had an opportunity to do that, and I am not ready today.” Gov. Patrick then withdrew his nomination, and resubmitted it on Feb. 12.