By Colleen Quinn

STATE HOUSE NEWS SERVICE

STATE HOUSE -- Despite an outpouring of support from prominent attorneys, including a former Massachusetts governor, Joseph Berman, Gov. Deval Patrick's controversial pick for a seat on the Superior court, was rejected Wednesday in a 4-4 vote of the Governor's Council.

Councilors Robert Jubinville, Marilyn Devaney, Jennie Caissie and Oliver Cipollini voted against Berman. Councilors Terrence Kennedy, Eileen Duff, Christopher Iannella and Michael Albano voted for him. Patrick presided at the meeting. Without a lieutenant governor - Tim Murray stepped down last year to run the Worcester Chamber of Commerce - Patrick was unable to break the tie in Berman's favor.

>>> For video of the Council's vote and Patrick's statement, go to: http://www.statehousenews.com/video/14-03-05council_gov/

For video of the Council's comments on Berman after the vote, go to: http://www.statehousenews.com/video/14-03-05council_debate/ <<<

A Weston resident, Berman is a partner at the Boston law firm Looney & Grossman. He graduated from Dartmouth College and received his law degree from the University of Michigan Law School. His practice focuses on commercial litigation - another sticking point for council members who expressed concerns about his lack of criminal experience.

After his nominee was rejected, Patrick read a lengthy statement he had written, saying he felt compelled to address some of the concerns raised about Berman. The council usually approves Patrick's judicial nominees, but has rejected a few lately.

Berman was criticized by council members for his hefty campaign contributions, for representing a prisoner at Guantanamo Bay detention camp, and for his leadership role in the Anti-Defamation League - an organization that refused to recognize the Armenian genocide.

"Joseph Berman is well qualified in learning, experience, and temperament to sit on the Superior Court," Patrick said. "What is done is done. But because the reasons expressed previously for your opposition are, in my view, unprecedented and I think unfair, I want to express for the record my disappointment with today's vote, no disrespect to any member, please."

In January, more than 100 attorneys wrote to the council urging them to approve Berman's nomination. Among them were former Gov. William Weld, former Attorney General Scott Harshbarger, and attorney general candidate Warren Tolman.

Patrick said council members' criticism about Berman's ADL leadership role was "misplaced," and said it was wrong to hold the campaign contributions against Berman when considering his qualifications to become a judge.

"Political contributions have never had any bearing on my nominations and I have never given you a basis to think otherwise," Patrick said. "Readiness is readiness. It doesn't turn into something else because the nominee exercised his or her First Amendment right to be an engaged citizen."

The governor said Berman's charitable contributions averaged three times more than the amount he gave to politicians.

In respect to the ADL, Patrick said the Armenian genocide is a matter of historical fact. "Mr. Berman acknowledges that fact now and in the past. That needs to be clear to everyone on the council, as well as in the Armenian and larger community," he said.

Patrick said the Armenian genocide must never be forgotten, nor denied. "But the regional ADL has done too much good work for human rights in our community and beyond to cast every supporter aside," he said. "We can be rigorous about evaluating prospective judges without attributing to them personally every view of a group to which they belong."

Caissie said she voted against Berman because she had "serious reservations about his truthfulness," citing his comments that he led a "insurrection" to change the stance of the ADL on the Armenian genocide, and his comments that representing a prisoner at Guantanamo was one of the things he was most proud of in his career.

"In my opinion, it was simply done to pad his resume," she said. "With respect to the ADL that is relevant to his truthfulness as well." Caissie said Berman could not produce any letters or documents to back up his claim that he worked to change ADL positions.

Some council members questioned Berman's pro bono work for a prisoner at Guantanamo Bay, a client who refused to meet with him and was eventually released after not being charged with a crime.

The law includes the right of access to competent counsel, "even for the outcast," Patrick said.

"The Supreme Court has repeatedly affirmed this principle. The commonwealth's own John Adams, in the famous case of the Boston Massacre, is a shining example of that principle in action," Patrick said.

"With due respect to all of you, a council charged with the duty to uphold the constitution should not disqualify a candidate because one of his clients was unpopular," Patrick said.

Patrick said he has no personal relationship with Berman, and did not know him before he was nominated, but has since been impressed with his level of experience in both criminal and civil work.

"It is no surprise he has been named by his peers as one of the top 100 lawyers in New England," Patrick said. "He has extensive civil and criminal litigation experience in the Massachusetts trial courts."

Patrick said Berman has no less experience, and in many cases greater experience, than many Superior Court judges the council has voted to confirm.

Berman was first interviewed in November, and when it appeared the council was poised to reject him, Patrick pulled back his nomination and mounted an effort to build support for the nominee. The governor resubmitted the nomination in February to give Berman another shot at convincing council members he would make a good judge. He had a second, more cordial hearing last week.

When Berman's nomination first appeared in jeopardy, the council took heat in editorial pages of Boston newspapers, with columnists criticizing the council.

Devaney said Wednesday she has received numerous "hate mail" letters, and threats that she will be defeated in her bid for re-election in November because of Berman's nomination.

Along with the New England ADL's stance on the Armenian genocide, Devaney said she voted against Berman because of his political contributions.

"I cannot dismiss the contributions that he gave," she said. " . . . I don't want to condone someone who is trying to buy his way in. In addition to all his contributions, he gave almost $17,000 to the Democratic State Committee. Anyone whose political knows what that means."

During the second hearing, Berman apologized for some impressions he may have left with council members during his initial vetting.

"I am grateful for today's second chance to show you who I am, what drives me, and how I have taken your concerns to heart," Berman said last week.

After the vote, Albano called it a sad day for the council. Albano said if Berman was not a member of the ADL, or did not contribute to campaigns, he would be a Superior Court judge.

"Mr. Berman in my view would have been an outstanding justice," Albano said. "If he didn't have these issues, he would have been confirmed."

Iannella said he was troubled by council members weighing Berman's campaign contributions in their decision. Iannella argued that people have a right to contribute to the political process, without it being a strike against them.

"That fact that he gave $100,000, you know he is a really, really, wealthy man, that should not bar him from being on the Superior Court." Iannella said. "I hope all types of people apply for judgeships, poor people, rich people, everyone should be able to apply. And just because he contributed a lot of money, that should not be a reason why we voted against, or we should have voted against, Mr. Berman."

Kennedy said the suggestion that Berman tried to buy a judgeship was offensive.

"There's no question, every single person is this room would say based on his legal background, he is qualified to be on the Superior Court," he said. "To attack him personally, I respect other reasons people are voting against him, but to attack his integrity I think is inappropriate. He is a very honest person.

"There is no question in my mind that when he sat in that chair he answered every question honestly," Kennedy added.