December 2007

An Interview with Representative Howard Berman

Representative Howard Berman (D-CA) was elected to Congress in 1982. He serves on the House
Judiciary Committee and chairs the House Judiciary Subcommittee on Courts, the Internet and
Intellectual Property.

Q: You’ve championed a pay increase for federal judges. But some of your colleagues oppose delinking their salaries from those of judges. What do you say to them?

A: Some of my colleagues believe that linking the salaries of federal judges to our own salaries will somehow make it politically more palatable for Members of Congress to approve cost-of-living adjustments for themselves. The evidence simply does not bear this out. The salaries of Members of Congress and district judges have really only been linked firmly for the last 20 years. In six of the last 12 opportunities, neither Congress nor federal judges have received a pay adjustment. Considering those numbers, at best, linkage only pushes the probability of authorizing a COLA for Congress to 50-50. I don’t think those odds warrant continuing a policy that holds judicial salaries hostage to the politics of congressional pay raises.

Absent a significant benefit to congressional salaries, I encourage my colleagues to consider whether linkage makes sense as an underlying compensation policy. I firmly believe it does not. Along those lines, a distinguished group of our former congressional colleagues considered the linkage issue and endorsed a joint report by scholars at the Brookings Institute and the American Enterprise Institute that was released earlier this year. The report includes a very useful examination of salary linkage as a policy. Their conclusion is that the policy exacerbates a growing impediment to building and retaining an experienced, diverse, and highly-qualified Judiciary, and I found it very persuasive.

Q: The House is considering legislation that would open federal trial courts to cameras, a move opposed by the Judicial Conference. The Judiciary feels camera coverage may undermine a citizen’s right to a fair trial. What are your views on cameras in the courts?

A: I appreciate the concerns expressed by the Judicial Conference in response to the legislation introduced in the House. However, I believe that the bill under consideration respects these concerns. H.R. 2128 does not force a camera into any judge’s courtroom. In fact, the bill gives discretion over the electronic recording, broadcasting, or televising of any court proceeding to the presiding judge. There are three limitations on the exercise of this discretionary power. The first and most important being this—if a presiding judge finds that opening the courtroom to cameras would violate the due process rights of any party, then the judge may not permit cameras or broadcasting of the proceeding, period. The other two limiting factors require that the court 1.) never permit the televising of any juror in a proceeding, and 2.) at the request of any witness, the court must order the face and voice of the witness to be obscured or disguised.

We rely on judges to exercise discretion in protecting the due process rights of parties at every turn of a trial or appellate proceeding. I see no reason that federal judges cannot be relied upon to prudently exercise this new discretion in a way that protects these interests with equal fortitude.

Q: Judicial ethics also are under the jurisdiction of your committee. Last fall, a committee chaired by Justice Stephen Breyer addressed numerous judicial conduct issues, and the Judicial Conference continues to implement recommendations from the Breyer Report. Are you satisfied with the steps the Judiciary is taking?

A: My concern about an effective mechanism to examine problematic judicial conduct is long-standing. In 2002, my colleague, Representative Howard Coble (R-NC) and I introduced legislation to revise and clarify the process by which complaints against judges are dealt with under the Judicial Conduct and Disability Act of 1980. The Judicial Improvements Act of 2002 became law later that year. Congressman Coble and I later wrote to Chief Justice William Rehnquist in his capacity as head of the Judicial Confer ence to make two key suggestions on how to improve the implementation of the law: first, that every federal court include a link on its website to the rules and forms for filing complaints regarding any judge of that court, and second, that chief judges and circuit councils should make their rulings under the 1980 Act more widely available to the public.

The Breyer Committee’s report and implementation of its recommendations are a helpful start to address concerns about judicial ethics. Findings by the report, such as inappropriate initial judicial review of “high-visibility” complaints, highlights the importance for the Judicial Conference to provide clarity for judges about the requirements of the Judicial Conduct and Disability Act. That said, I’m pleased that, since the Breyer Committee released its findings last year, the Judicial Conference has taken several steps towards implementing the recommendations made in the report, particularly in looking for ways to better educate and advise judges on how to properly move forward with complaints brought against their colleagues on the bench.

I am also very encouraged by the Judicial Conference’s release for public comment of the “Rules Governing Judicial Conduct and Disability Proceedings.” Once these Rules go into effect, they will ratify many of the Breyer Committee’s recommendations.

I believe that these Rules, specifically proposed Rules 11 and 21, for example, will provide important guidance to chief circuit judges and the Committee on Judicial Conduct and Disability and improve the examination and investigation of legitimate complaints lodged against judges. Time will tell whether these Rules have the impact desired on the treatment of legitimate complaints, but I believe they will have a positive impact and have been a long time coming.

Q: You introduced patent reform legislation in the House. Why is this legislation important to you? And what are its prospects for enactment?

A: Patents are a cornerstone of the United States economy because they spur innovation. By providing inventors exclusive rights to their inventions, patents provide an economic incentive to innovate. However, it has become clear in recent years that problems in the quality of the patent system have damaged the ability of patents to perform this function. Poor-quality patents and inappropriate litigation rules are forcing companies at the cutting edge of technology to divert their limited resources away from R&D, and into defending their businesses against patents that should never have been issued. The patent reform legislation that was passed by the House will address these problems by increasing the scrutiny each patent application must endure and making it more difficult to challenge a patent based on subjective elements like “willfulness” and “intent.” These reforms came mainly from recommendations provided by entities like the National Academy of Sciences, the Federal Trade Commission, and the United States Patent and Trademark Office. Since these reforms are so critical to our economy, I am confident that we will enact patent reform legislation in the 110th Congress.

Q: During the debate on S. 214, the Preserving United States Attorney Independence Act of 2007, you urged moving quickly to restore the authority of district courts to appoint interim U.S. attorneys. The bill subsequently was enacted. Do you think the law is satisfactory, or do you think it will need further modification down the road?

A: When the House considered S. 214, I made clear that returning the interim appointment process to the status quo ante was the immediate priority, but not Congress’s last word on the matter. Reversing the shift in appointment power back to the district court from the Attorney General was a short-term imperative to curtail what the Committee on the Judiciary saw as virtually immediate abuse of the amendments made to the process in the reauthorization of the USA PATRIOT Act.

In the progress of the Judiciary Committee’s investigation of the U.S. attorney firings, we have looked at a second provision in the PATRIOT Act that removed residency requirements for U.S. attorneys. A closer examination of the source of the provision and its application revealed that it was likely added into the PATRIOT Act reauthorization to make it possible for particular appointees to serve simultaneously as a U.S. attorney and in another position, or in some cases multiple positions, at main Justice. We should repeal that provision.

Communities should feel confident that their U.S. attorneys were not appointed for purely political purposes. These positions of trust shouldn’t be used to “develop the bench” or to send in someone who has no connection to the community whatsoever just because he needed a job. We should fix the system completely, and we will.