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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
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.
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
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
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.