McBryde, John H. v. Com Rev Cir Cncl

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2000 Decided September 21, 2001

No. 00-5016

The Honorable John H. McBryde,

United States District Judge for the

Northern District of Texas,

Appellant

v.

Committee to Review Circuit Council Conduct and

Disability Orders of the Judicial Conference

of the United States, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cv02457)

David Broiles and Arnon D. Siegel argued the cause and

filed the briefs for appellant.

William B. Schultz, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellee

United States of America. David W. Ogden, Assistant Attor-

ney General, Mark B. Stern and Scott R. McIntosh, Attor-

neys, and Wilma A. Lewis, U.S. Attorney at the time the

brief was filed, were on the brief. Thomas W. Millet, Attor-

ney, U.S. Department of Justice, entered an appearance.

Robert B. Fiske, Jr. argued the cause for appellees the

Committee to Review Circuit Council Conduct and Disability

Orders of the Judicial Conference of the United States, et al.

With him on the brief was Lowell Gordon Harriss.

Before: Williams and Tatel, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Williams.

Separate opinion filed by Circuit Judge Tatel, concurring

in part and dissenting in part.

Williams, Circuit Judge: On December 31, 1997 the Judi-

cial Council of the Fifth Circuit (the "Judicial Council" or

"Council"), acting under the Judicial Conduct and Disability

Act of 1980, 28 U.S.C. s 372(c) (the "Act"), imposed sanctions

on the Honorable John H. McBryde, United States District

Judge for the Northern District of Texas. The sanctions

followed a two-year investigation by a Special Committee of

the Judicial Council ("Special Committee"), including nine

days of hearings. The Committee took evidence relating to

incidents spanning the entirety of Judge McBryde's judicial

career and involving encounters with judges and lawyers both

inside and outside his courtroom. (We will consider an

example from the exhaustive record when we address Judge

McBryde's argument that the Council illegally considered the

merits of his judicial decisions.)

The investigation culminated in a 159-page report in which

the Special Committee concluded that "Judge McBryde ha[d]

engaged for a number of years in a pattern of abusive

behavior" that was " 'prejudicial to the effective and expedi-

tious administration of the business of the courts.' " Report

of the Special Committee of the Fifth Circuit Judicial Coun-

cil Regarding Complaints Against, and the Investigation

into the Conduct of, Judge John H. McBryde at 150-51 (Dec.

4, 1997) ("Committee Report") (quoting 28 U.S.C. s 372(c)).

The Report also recommended a variety of sanctions based on

the provisions of s 372(c)(6)(B): that Judge McBryde receive

a public reprimand, pursuant to subsection (v); that no new

cases be assigned to him for a year, pursuant to subsection

(iv); and that he not be allowed for three years to preside

over cases involving any of 23 lawyers who had participated in

the investigation, pursuant to subsection (vii) (providing for

"other action" considered appropriate in light of circum-

stances). See Committee Report at 152-58. The Judicial

Council endorsed the recommendations and issued an order

imposing the recommended sanctions. See In re: Matters

Involving United States District Judge John H. McBryde,

Under the Judicial Conduct and Disability Act of 1980, No.

95-05-372-0023 (Jud. Council 5th Cir. Dec. 31, 1997) ("Judi-

cial Council Order"). The lawyer-related disqualification be-

came effective on February 6, 1998, but the Council stayed

the reprimand and the one-year suspension pending review

by the Committee to Review Circuit Council Conduct and

Disability Orders of the Judicial Conference of the United

States (the "Review Committee"). On September 18, 1998

the Review Committee substantially affirmed the Council's

action and lifted the stay. See In re: Complaints of Judicial

Misconduct or Disability, No. 98-372-001 (Jud. Conf. U.S.

Sept. 18, 1998) ("Judicial Conference Report").

Soon thereafter Judge McBryde brought suit in district

court, claiming that the Act, both facially and as applied,

violated the due process clause and the Constitution's separa-

tion of powers doctrine.1 He also claimed that the initiation

and conduct of the investigation against him exceeded the

authority granted by the statute. Finally, he posed a First

Amendment challenge to the Act's restrictions on disclosing

__________

1 Defendants/Appellees in this case are the Review Committee;

Judge William J. Bauer, individually and as Chairman and as

member of the Review Committee; the Judicial Council; and Judge

Henry J. Politz, individually and as Chief Judge of the Court of

Appeals for the Fifth Circuit and as presiding member of the

Judicial Council, at the relevant times.

the record of the proceedings. On cross motions for sum-

mary judgment, the district court agreed with Judge

McBryde's First Amendment argument, McBryde v. Commit-

tee to Review Circuit Council Conduct and Disability Orders,

83 F. Supp. 2d 135, 171-78 (D.D.C. 1999), but rejected the

rest. Only Judge McBryde appealed; here he repeats the

essence of his remaining arguments.

Judge McBryde's claims are moot insofar as they distinc-

tively relate to the one-year suspension, which expired on

September 18, 1999, and the three-year disqualification, which

expired on February 6, 2001. Certain of the non-moot claims

are barred by the Act's preclusion of judicial review, 28

U.S.C. s 372(c)(10), namely the "as applied" and statutory

challenges; the district court was therefore without jurisdic-

tion to hear them. We vacate the district court's judgment

insofar as it addressed the moot or precluded issues. Judge

McBryde's remaining constitutional challenges fail on their

merits; we therefore affirm the district court's ruling. We

address first mootness, then preclusion, and finally the mer-

its.

* * *

Article III, Section 2 of the Constitution permits federal

courts to adjudicate only "actual, ongoing controversies."

Honig v. Doe, 484 U.S. 305, 317 (1988). If events outrun the

controversy such that the court can grant no meaningful

relief, the case must be dismissed as moot. See, e.g., Church

of Scientology of California v. United States, 506 U.S. 9, 12

(1992). This requirement applies independently to each form

of relief sought, see Friends of the Earth v. Laidlaw, 528 U.S.

167, 185 (2000), and "subsists through all stages of federal

judicial proceedings, trial and appellate," Lewis v. Continen-

tal Bank Corp., 494 U.S. 472, 477 (1990).

The one-year and three-year bans have expired. No relief

sought in this case would return to Judge McBryde the cases

he was not assigned or otherwise improve his current situa-

tion. These claims will therefore be moot unless they are

"capable of repetition, yet evading review." Weinstein v.

Bradford, 423 U.S. 147, 149 (1975). Both the Supreme Court

and this court have held that "orders of less than two years'

duration ordinarily evade review." Burlington Northern

R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir.

1996); see also Southern Pac. Terminal Co. v. ICC, 219 U.S.

498, 514-16 (1911). So the one-year exclusion safely qualifies.

We will assume in Judge McBryde's favor the same for the

three-year exclusion.

But are the injuries "capable of repetition"? Stated more

formally, this requires "a reasonable expectation that the

same complaining party would be subjected to the same

action again." Weinstein, 423 U.S. at 149. When considering

the likelihood that an injury will be repeated, the Supreme

Court has in general "been unwilling to assume that the party

seeking relief will repeat the type of misconduct that would

once again place him or her at risk of that injury." Honig,

484 U.S. at 320 (citing City of Los Angeles v. Lyons, 461 U.S.

95, 105-06 (1983); Murphy v. Hunt, 455 U.S. 478, 484 (1982);

O'Shea v. Littleton, 414 U.S. 488, 497 (1974)). Honig created

an exception to this general principle on the ground that

there it was the disabled respondent's "very inability to

conform his conduct to socially acceptable norms that ren-

der[ed] him 'handicapped.' " 484 U.S. at 320. We have no

basis for concluding that there is any parallel inability here.

In the cases cited by Honig the parties did not challenge

the underlying laws that proscribed their potential future

conduct. See, e.g., O'Shea, 414 U.S. at 496-97. McBryde

obviously does challenge the Act and the authority of the

defendants to enforce norms of judicial conduct. But he does

not appear to challenge the norms themselves. To be sure,

he asserts that the Special Committee's report is vague and

provides inadequate notice of what actions are prohibited.

But the fundamental standard sought to be enforced by the

defendants can plainly be discerned--that a judge should

demonstrate at least a modicum of civility and respect to-

wards the professionals with whom he or she works. The

standard is also familiar, as it clearly echoes Canon 3(A)(3) of

the Code of Judicial Conduct for Federal Judges. See Code

of Judicial Conduct for United States Judges, Canon 3(A)(3);

Judicial Council Order at 2. Judge McBryde does not, so far

as we can determine, ever challenge this basic notion any-

more than the plaintiff in Lyons claimed a right to engage in

the sort of conduct that (he said) commonly led to police use

of chokeholds. Indeed at oral argument counsel for Judge

McBryde specifically acknowledged that at least some of the

conduct "could be considered inappropriate." See Oral Arg.

Tr. at 80-81. With this decision's confirmation of the Judicial

Council's authority to sanction Judge McBryde for consistent

failure to adhere to this norm, we think the risk of recurrence

fairly slight. We recognize that docket limitations can be a

very serious matter. See Wozniak v. Conry, 236 F.3d 888,

890 (7th Cir. 2001) (holding that depriving a tenured profes-

sor of all teaching and research responsibilities affected a

property interest sufficiently to entitle him to some kind of a

hearing). But here the two restrictions on Judge McBryde's

docket have become moot.

The dispute over the public reprimand, however, remains

alive. Any thought that the reprimand is a past and irrevers-

ible harm is belied by the fact that it continues to be posted

on the web site of the Fifth Circuit Court of Appeals,2 with a

link on the home page alongside items for current use such as

the court's calendar and opinions.3 Even absent that use of

modern technology it would be a part of the historical record.

Were Judge McBryde to prevail on the merits it would be

within our power to declare unlawful the defendants' issuance

of stigmatizing reports and thereby to relieve Judge McBryde

of much of the resulting injury.

No one has suggested that this injury to reputation is not

enough to afford Judge McBryde standing (the three-year

limit was in effect at the time of oral argument). But we

have a duty to be sure of our own jurisdiction, see Bender v.

Williamsport Area School Dist., 475 U.S. 534, 541 (1986), so

we consider the question. The Court has, of course, ruled

that mere injury to reputation is not enough of an impinge-

ment on a person's liberty or property interest to trigger a

__________

2 See <http://www.ca5.uscourts.gov/mcbryde.htm>, last ac-

cessed on June 20, 2001.

3 See <http://www.ca5.uscourts.gov/>, last accessed on June

20, 2001.

requirement of due process. See Paul v. Davis, 424 U.S. 693

(1976). But injury to reputation can nonetheless suffice for

purposes of constitutional standing. Thus, in Meese v. Keene,

481 U.S. 465 (1987), the Court found that a politician and film

distributor had standing to challenge a government agency's

stigmatizing as "political propaganda" foreign films that he

wished to exhibit. The Court rested not only on affidavits

indicating that this branding would affect his chances for

reelection, id. at 473-74, but also on the impact on his

reputation generally, id. Here, the official characterization of

an apparently upstanding federal judge as having "engaged

for a number of years in a pattern of abusive behavior" that

was " 'prejudicial to the effective and expeditious administra-

tion of the business of the courts' " inflicts, we think, enough

injury. Committee Report at 150-51 (quoting 28 U.S.C.

s 372(c)).

At some point, however, claims of reputational injury can

be too vague and unsubstantiated to preserve a case from

mootness. See Advanced Management Technology, Inc. v.

FAA, 211 F.3d 633, 636-37 (D.C. Cir. 2000). Insofar as the

one-year and three-year suspensions may have continuing

reputational effects on top of the defendants' express repri-

mand, they are not enough. The legally relevant injury is

only the incremental effect of a record of the suspensions

(since the fact of the suspensions can no longer be remedied),

over and above that caused by the Council's and the Confer-

ence's explicit condemnations. See Friedman v. Shalala, 46

F.3d 116, 117-18 (1st Cir. 1995). And even as to that

increment the most we could say at McBryde's behest is that

in imposing and affirming the suspension sanction the Judicial

Council and Review Committee performed acts reserved by

the Constitution to the House and a two-thirds majority of

the Senate. We cannot see how this would rehabilitate his

reputation. Moreover, the Supreme Court has strongly sug-

gested, without deciding, that where an effect on reputation is

a collateral consequence of a challenged sanction, it is insuffi-

cient to support standing or, presumably, to escape mootness.

See Spencer v. Kemna, 523 U.S. 1, 16-17 n.8 (1998). In this

circuit, when injury to reputation is alleged as a secondary

effect of an otherwise moot action, we have required that

"some tangible, concrete effect" remain, susceptible to judicial

correction. See Penthouse Int'l, Ltd. v. Meese, 939 F.2d

1011, 1019 (D.C. Cir. 1991).

* * *

Although the injury to Judge McBryde's reputation pre-

serves the public reprimand from mootness and affords

standing, yet another question remains about our jurisdiction.

The statute enabling the Judicial Council and Review Com-

mittee to consider Judge McBryde's conduct sets out the

avenues through which a judge may challenge actions taken

against him. 28 U.S.C. s 372(c)(10). It allows a petition to

the Judicial Conference for review of a decision of the judicial

council taken under s 372(c)(6). It then appears to preclude

alternative avenues of review:

Except as expressly provided in this paragraph, all or-

ders and determinations, including denials of petitions for

review, shall be final and conclusive and shall not be

judicially reviewable on appeal or otherwise.

28 U.S.C. s 372(c)(10). Twice in the past this provision has

appeared before us, but on neither occasion did we need to

resolve its meaning. See Hastings v. Judicial Conference of

the United States, 829 F.2d 91, 107 (D.C. Cir. 1987) ("Has-

tings II"); Hastings v. Judicial Conference of the United

States, 770 F.2d 1093, 1103 (D.C. Cir. 1985) ("Hastings I").

There are some claims that this section definitely does not

preclude. The statutory language closely parallels that con-

strued in Johnson v. Robison, 415 U.S. 361 (1974), where

Congress provided that "decisions" of the Veterans Adminis-

tration "on any question of law or fact" under certain laws

"shall be final and conclusive," and expressly withheld juris-

diction from any court to review "any such decision." Id. at

365 n.5 (quoting the then-applicable version of 38 U.S.C.

s 211(a)). The Court held that s 211(a) had no application to

challenges to the constitutionality of the statutes in question,

i.e., challenges to the decisions of Congress, not the Veterans

Administration. See id. at 367. This interpretation allowed

the Court to avoid the " 'serious constitutional question' " that

would be posed "if a federal statute were construed to deny

any judicial forum for a colorable constitutional claim." Web-

ster v. Doe, 486 U.S. 592, 603 (1988) (quoting Bowen v.

Michigan Academy of Family Physicians, 476 U.S. 667, 681

n.12 (1986)). Similarly, the wording of s 372(c)(10) does not

withhold jurisdiction over Judge McBryde's claims that the

Act unconstitutionally impairs judicial independence and vio-

lates separation of powers.

This leaves four claims in addition to the facial constitution-

al challenges. Two of these four also invoke the Constitution,

challenging the actions of the defendants in applying the Act

to Judge McBryde. The first claim is that the defendants

inflicted their sanction without providing him due process.

This claim principally involves an assertion that the whole

project arose out of a conflict between himself and then-Chief

Judge Politz, whose actions furthering the investigation

Judge McBryde regards as "retaliation" and who, he claims,

combined "investigative, charging, prosecutorial and adjudica-

tive functions." Judge McBryde argues, in effect, that he

was denied due process because Judge Politz refused to

recuse himself. The second constitutional claim is somewhat

obscure. He argues, in essence, that the methods used by

the Judicial Council and Judicial Conference in imposing the

sanction, were particularly invasive and therefore violated

judicial independence. He cites two examples. When the

Review Committee amended the Judicial Council's order so as

to permit reinstatement if the council found that Judge

McBryde had "seized the opportunity for self-appraisal and

deep reflection in good faith," Judicial Conference Report at

24, it engaged (he says) in forbidden "judicial behavior modifi-

cation." And the Judicial Council's use of psychiatrists for

advice on Judge McBryde's mental health, and on the possi-

ble causes of his conduct, was "fundamentally destructive of

judicial independence."

Beyond these constitutional claims are two phrased by

Judge McBryde as assertions that the actions of the Special

Committee, the Council and the Review Committee against

him were "Beyond the Agencies' Statutory Jurisdiction."

One of these claims is in fact an attack on the defendants'

procedures, namely an argument that although the investiga-

tive process was launched by complaints formally filed under

s 372, it widened as it went on to encompass conduct not

mentioned in those initial complaints. The other is a claim

that the defendants were without statutory authority to inves-

tigate and penalize Judge McBryde "for" the merits of his

decisions and rulings (his characterization of defendants' ac-

tions). We conclude that s 372(c)(10) bars all four chal-

lenges.

As we said, two of the claims are framed in constitutional

terms. When the Constitution is invoked, a claim of preclu-

sion faces an especially high hurdle. "[W]here Congress

intends to preclude judicial review of constitutional claims its

intent to do so must be clear." Webster, 486 U.S. at 603

(citing Robison, 415 U.S. at 373-74). And a series of cases in

this circuit have held that this special clarity is necessary

even for as applied challenges. See Griffith v. FLRA, 842

F.2d 487, 494-95 (D.C. Cir. 1988); Ungar v. Smith, 667 F.2d

188, 193 (D.C. Cir. 1981); Ralpho v. Bell, 569 F.2d 607, 620-

21 (D.C. Cir. 1977). Under these cases, we find preclusion of

review for both as applied and facial constitutional challenges

only if the evidence of congressional intent to preclude is

"clear and convincing." The preclusive language here is quite

similar to that of 5 U.S.C. s 8128(b), which the Court singled

out in Lindahl v. OPM, 470 U.S 768, 779-80 & n.13 (1985), as

an "unambiguous and comprehensive" preclusion of review.

See also Czerkies v. Department of Labor, 73 F.3d 1435, 1443

(7th Cir. 1996) (Easterbrook, J., concurring). But see id. 73

F.3d at 1442 (majority opinion finding jurisdiction despite

s 8128(b)); Paluca v. Secretary of Labor, 813 F.2d 524, 525

(1st Cir. 1987) (same). But under this court's Ralpho trilogy,

we have not regarded broad and seemingly comprehensive

statutory language as supplying the necessary clarity to bar

as applied constitutional claims. See Griffith, 842 F.2d at 490

(citing 5 U.S.C s 7123(a) (1982)); Ungar, 667 F.2d at 193

(citing 22 U.S.C. s 1631o(c) (1976)); Ralpho, 569 F.2d at 613

(citing s 2020 of the Micronesian Claims Act of 1971). In the

absence of explicit statutory language barring review of con-

stitutional challenges, the opinions studied the legislative

history, finding the clear and convincing standard unsatisfied

in all three cases. Griffith, 842 F.2d at 494-95; Ungar, 667

F.2d at 196; Ralpho, 569 F.2d at 621-22.

We pretermit the possibility that the Supreme Court's

decision in Traynor v. Turnage, 485 U.S. 535, 542-45 (1988),

postdating the last of the circuit trilogy (Griffith), has under-

mined the trilogy's premise. It may have done so by treating

the Robison decision (source of the circuit trilogy) as deriving

more from statutory language allowing review of attacks on

the facial validity of the provision being applied (whether the

attack was statutory or constitutional), and less from ideas of

special status for constitutional claims.

Assuming arguendo the full applicability of the circuit

trilogy, however, we nonetheless find the requisite clarity of

preclusive intent. Of course if the trilogy is read to require

magic words expressly barring as applied constitutional at-

tacks, they are not to be found. But the legislative history

manifests express concern over the Robison issue and what

appears to have been a deliberate congressional effort to

assure that in practice ample review would occur. Congress

vested the authority for implementing the Act exclusively in

the hands of Article III judges, providing for initial action by

one group of such judges and for review by another group.

Having done so, Congress clearly meant to be understood

quite literally when it said in s 372(c)(10) that orders of the

Judicial Conference or relevant standing committee "shall not

be judicially reviewable on appeal."

The Senate bill would have established a special Article III

court for review of misconduct findings--coupled with preclu-

sion of any other review. S. 1873, as reported out of commit-

tee and as passed by the Senate, provided for creation of a

" 'court of record to be known as the Court on Judicial

Conduct and Disability.' " See S. 1873, 96th Cong. s 2(a)

(proposed 28 U.S.C. s 372(g)(1)) (as reported to the full

Senate by the Judiciary Committee on October 10, 1979).

" 'The Court may exercise all appropriate judicial powers

incident or necessary to the jurisdiction conferred upon it.' "

Id. The bill precluded further review of the Court's actions

in language similar to that of the final version: " 'There shall

be no judicial review of any order or action of the Court taken

under this subsection or subsection (h).' " Id. (proposed 28

U.S.C s 278(i)(3)). In discussing the new Court, the Commit-

tee report said:

A national court of stature will help to alleviate the fear

and public perception of a local "whitewash" of a citizen's

complaint. It will also provide a forum for a judge who

believes that the council of his circuit has acted against

him in an unwarranted or unfair manner. In addition, by

providing this court with broad discretionary power to

regulate the number of cases it wishes to hear, the

provision assures that a bureaucratic, excessively formal-

ized procedure will be avoided.

S. Rep. No. 96-362, at 3 (1980), reprinted in 1980 U.S.C.A.A.N.

4315, 4317.

In the Senate debate, Senator DeConcini introduced a

report commissioned by the Judiciary Committee's staff and

prepared by Mr. Johnny H. Killian. The report directly

addressed the Robison issue. After reviewing Supreme

Court authority on whether any right of appeal was required,

the report said:

The Supreme Court in dicta in recent cases has hinted

that preclusion of judicial review of constitutional claims

might raise constitutional questions, Johnson v. Robison,

41[5] U.S. 361, 366-67 (1974); Weinberger v. Salfi, 422

U.S. 749, 761-762 (1975), but its concern appears to be

that litigants at some point have access to an Article III

court, Territory of Guam v. Olsen, 431 U.S. 195, 201-202,

204 (1977), and the Court on Judicial Conduct and Dis-

ability would be an Article III court.

125 Cong. Rec. 30,050/1 (Oct. 30, 1979) (remarks of Sen.

DeConcini).

The House version called instead for review by the Judicial

Conference. When it was returned to the Senate, Senator

DeConcini expressed regret that the "Court" envisaged by

the Senate bill had not survived. But he recognized the close

similarity between review by that "Court" and by the Judicial

Conference (or a standing committee thereof):

Today's compromise substitute amendment is at least

close to what was originally envisioned by the Senate this

Congress, in that a permanent, independent standing

committee of the judicial conference is authorized to be

established. Such a body, while not an independent

review court, will provide for uniformity of decisions and

the building of precedents.

126 Cong. Rec. 28,090/2 (Sept. 30, 1980) (remarks of Sen.

DeConcini).

Indeed, it is not clear whether there is any material

difference between the two. In both cases, of course, the

persons conducting the review are exclusively Article III

judges. In both cases review is discretionary. 126 Cong.

Rec. 28,092/3 (Sept. 30, 1980). Speaking of the Judicial

Conference review, Senator DeConcini observed: "It is envi-

sioned that over the long term these petitions will develop

into something like petitions for writs of certiorari to the

Supreme Court of the United States." Id.

It seems fair to suppose that both houses of Congress

realistically expected that the Judicial Conference would hear

all serious claims. Indeed, explaining its rejection of the

Senate proposal for a new court, the House Judiciary Com-

mittee only expressed concern that its formal character would

unduly invite complaints against judges and thereby threaten

judicial independence:

In essence, the Committee rejected the special court

feature of S. 1873 and certain other of its features

because creation of a system in which complaints against

federal judges could be so easily pressed to a formal

adversary accusatorial proceeding raised the dangers of

a substantial chilling effect on judicial independence, as

well as the danger of infliction of harm and disruption of

the administration of justice.

H.R. Rep. No. 96-1313, at 18 (1979). The only discussion of

the matter on the floor was the observation that "[t]here is

also an appellate procedure which culminates in the Judicial

Conference of the United States." 126 Cong. Rec. 25,370/3

(Sept. 15, 1980) (remarks of Rep. Gudger). Thus the House's

expectations for review appear to be entirely consistent with

those of the Senate. Only the means for providing the review

were altered, and the shift seems to be due to a greater, not

lesser, solicitude for judges' constitutional rights and inter-

ests.

Later developments seem to suggest that the risks the

compromise sought to constrain were indeed substantial. Ac-

cording to the Administrative Office of the U.S. Courts, the

year ending September 30, 2000 saw 696 complaints filed

under s 372(c). During the same period, 715 complaints

were concluded. Chief judges dismissed 359 complaints and

judicial councils dismissed 354 more. Only two resulted in

public censure and 162 remain pending.4 Defending against

these claims is disruptive and potentially expensive. See

App. Br. at 52. Congress sought in the Act to give the

judiciary the power to "keep its own house in order" by

conducting its own investigations of misconduct. See S. Rep.

No. 96-362, at 11, reprinted in 1980 U.S.C.A.A.N. at 4325.

By adding review preclusion, they limited the potential dis-

ruption, while providing for adequate review in those few

cases that might require it.

We note that the Judicial Conference committee has dis-

claimed authority to rule on as applied, as well as facial,

constitutional challenges:

We have no competence to adjudicate the facial consti-

tutionality of the statute or its constitutional application

to the speech of an accused judge, however inappropriate

__________

4 See 2000 Report of the Director, Table S-22, Report of

Complaints Filed and Action Taken Under Authority of Title 28

U.S.C. Section 372(c) available online at <http://www.uscourts.

gov/judbus2000/tables/s22sep00.pdf>, last accessed on June 20,

2001.

or offensive his words may be. We are not a court. Our

decisions are not subject to review by the Supreme Court

of the United States. We sit in review of the action of

the Circuit Council. The courts of the United States are

open for the adjudication of such questions.

Judicial Conference Report at 21, quoting its decision in No.

84-372-001. The committee offered no reason for this posi-

tion. While we apply deference under Chevron, U.S.A., Inc.

v. NRDC, 467 U.S. 837 (1984), to agencies' jurisdictional

decisions, see Transmission Access Policy Study Group v.

F.E.R.C., 225 F.3d 667, 694 (D.C. Cir. 2000); Oklahoma

Natural Gas v. FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994),

the statutory mandate to the committee appears to contain no

language justifying a decision to disregard claims that a

circuit judicial council has violated a judge's constitutional

rights in application of the Act. See s 372(c)(10) (authorizing

"review" by the Judicial Conference or a standing committee

thereof). To be sure, agencies ordinarily lack jurisdiction to

" 'adjudicat[e] ... the constitutionality of congressional enact-

ments,' " Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215

(1994) (quoting Robison, 415 U.S. at 368), "although the rule

is not mandatory," id. But agencies do have "an obligation to

address properly presented constitutional claims which ... do

not challenge agency actions mandated by Congress." Grace-

ba Total Communications, Inc. v. F.C.C., 115 F.3d 1038, 1042

(D.C. Cir. 1997). See also Meredith Corp. v. F.C.C., 809 F.2d

863, 872-74 (D.C. Cir. 1987). We can see neither any reason

why Congress would have withdrawn that power and obli-

gation from a reviewing "agency" composed exclusively of

Article III judges nor any indication that it has done so.

Thus Congress in the end enabled a sanctioned judge to

seek review by Article III judges of the Judicial Conference

of all claims except (presumably) facial attacks on the statute.

As a result, to read s 372(c)(10) to allow review of constitu-

tional as-applied claims by conventional courts as well would

generate substantial redundancy, an implausible legislative

purpose. Moreover, whereas the legislative history of the

statutes at issue in Griffith and Ungar reflected a "silent" or

unexplained deletion of an exception for constitutional claims,

see Dissent at 9-10, here Congress explained the deletion of

the Senate's formal Article III court. The less formal ver-

sion, the House Judiciary Committee thought, would be more

protective of sanctioned judges, because the Senate solution

risked generation of "formal adversary accusatorial proceed-

ing[s]" that would "raise[ ] the dangers of a substantial chill-

ing effect on judicial independence." H.R. Rep. No. 96-1313,

at 18 (1979). Although the difference in fact seems to us

largely cosmetic, the House-induced change seems entirely

consistent with the Senate's plan that review should cease

once a single Article III panel, drawn from the Judicial

Conference, had passed on the work of the sanctioning circuit.

In short, we find the evidence clear and convincing that

Congress intended s 372(c)(10) to preclude review in the

courts for as applied constitutional claims. Members of Con-

gress were aware of Robison and more generally of doctrines

presuming access to Article III review of decisions impinging

on important interests. Put ultimately to a choice between

review by an Article III "Court" and review by a committee

of Article III judges chosen by and from the Judicial Confer-

ence, they chose the latter. They did so in order to protect

judges from the "chilling" effects of unnecessary complaints,

not with any expectation that the Judicial Conference would

scant judges' rights.

Vesting the power to review facial attacks on the Act in the

courts conforms fully to Robison; but reserving to the Judi-

cial Conference committee exclusive authority over as applied

constitutional challenges fulfills both the presumption in favor

of access to Article III review of constitutional claims and the

norm requiring "agencies" to avoid unconstitutional applica-

tions not mandated by Congress, at the same time as it

prevents undue prolongation of the disciplinary process. Ac-

cordingly, we find that in s 372(c)(10) Congress clearly and

convincingly barred our review of Judge McBryde's claim of

unconstitutional application of the Act.

We are left only with the two claims that defendants

exceeded their statutory authority--the objections that the

investigation impermissibly swelled beyond the scope of the

initial complaints and that the Judicial Council sanctioned

Judge McBryde for the merits of his decisions. Judge

McBryde seeks an exception to the jurisdictional limitation

for these claims under Leedom v. Kyne, 358 U.S. 184 (1958).

But Kyne involved preclusion that had been inferred from the

National Labor Relations Act, and is therefore merely an

application of the familiar requirement that there be "clear

and convincing evidence" of legislative intent to preclude

review. See Board of Governors v. MCorp Financial, Inc.,

502 U.S. 32, 44 (1991) (internal citations omitted). Judge

McBryde also seeks an exception allowing review under Dart

v. United States, 848 F.2d 217 (D.C. Cir. 1988), where this

court reviewed an agency action despite an explicit preclusion

provision. But Dart stands for the exceedingly narrow prop-

osition that a statute precluding review is limited by its

language. "[T]he Veterans' Administrator cannot issue oil

drilling permits--nor can the Secretary of Labor rescind

television licenses--and expect to escape judicial review by

hiding behind a finality clause." Id. at 224. Thus, in Dart

itself we found that the Secretary of Commerce's order

reversing an administrative law judge's decision did not enjoy

the preclusion that the statute afforded an order to "affirm,

modify or vacate" the ALJ's decision. See id. at 227-31. But

Dart cannot mean that statutory insulation of a specific type

of "order" from review is automatically ineffective whenever

the complainant asserts legal error. And that is the most

Judge McBryde claims here.

His complaint expansion theory is that the actions taken

against him were not based on the merits of any properly

filed or identified complaint, as provided for by 28 U.S.C.

s 372(c)(1). Subparagraph (c)(4)(A) gives the chief judge the

power to form a special committee "to investigate the facts

and allegations contained in the complaint." Absent a com-

plaint, we may assume, the Judicial Council could not make a

valid order under paragraph (c)(6). Accordingly, Judge

McBryde argues that Circuit Rule 9(A), which allows a special

committee to expand the scope of an investigation, is invalid;

on that account, he claims, we do not have before us an

"order" of the sort for which judicial review is barred by

s 372(c)(10). But s 372(c)(5) explicitly gives a special com-

mittee the authority to "conduct an investigation as extensive

as it considers necessary," and s 372(c)(1) states that a valid

written complaint may be made by "any person." 28 U.S.C.

ss 372(c)(1) & (5). Thus Judge McBryde's objection reduces

to arguments as to the exact reach of these provisions.

Treating such a claim as involving a deficiency that would

strip the defendants' acts of the character of "orders" for

purposes of s 372(c)(10) would obliterate the section altogeth-

er.

Judge McBryde's statutory merits-relatedness claim also

falls short. The Act itself is permissive when it comes to the

investigation of claims that are related to the merits. The

chief judge, under s 372(c)(3) "may" dismiss a complaint if he

finds the complaint is "directly related to the merits of a

decision or a procedural ruling." A finding of merits relation

does not prohibit the chief judge from appointing a special

committee and therefore does not undermine the validity of

the action of the Special Committee or the Judicial Council

for the purposes of s 372(c)(10). Had the Fifth Circuit

Judicial Conference promulgated a rule specifically calling for

the investigation of the merits of decisions, such a rule might

conceivably be challenged under Traynor, 485 U.S. at 541-45

(allowing review of claim that an agency regulation was

invalidated by a statute not committed to that agency's

exclusive administration). But no such rule exists in this

case, and Judge McBryde has stated his objection only in the

most general terms. Nowhere does he suggest that the

Judicial Council's action has the character of a rule, or

suggest an exception under Traynor, or even suggest which

statutory provision such a rule would run afoul of. Again, it

is plain that the statutory error asserted (if error it be) is not

the sort that under Dart would deprive the defendants'

orders of the status of "orders and determinations" covered

by s 372(c)(10), or otherwise escape its preclusive effect.

* * *

Judge McBryde makes two related facial constitutional

challenges that survive both mootness and preclusion. First,

he reads the clause vesting the impeachment power in Con-

gress as precluding all other methods of disciplining judges;

on this theory, the Act violates separation of powers doctrine.

Second, he says that the principle of judicial independence

implicit in Article III bars discipline of judges for actions in

any way connected to his actions while on the bench.

The issues are of course linked, as the great bulwarks of

judicial independence are the guarantees of life tenure and

undiminished salary during good behavior. For Judge

McBryde, the fact that individual judges are the direct benefi-

ciaries of these guarantees proves that it is the individual

judge that is the relevant unit of judicial independence.

While this perspective has had its supporters, see Chandler v.

Judicial Council of the Tenth Circuit, 398 U.S. 74, 129-43

(1970) (Douglas, J., and Black, J., dissenting); Hastings I, 770

F.2d at 1106-07 (Edwards, J., concurring); but see Harry T.

Edwards, Regulating Judicial Misconduct and Divining

"Good Behavior" for Federal Judges, 87 Mich. L. Rev. 765,

785 (1989), the cases speak almost exclusively to judicial

independence from the influence or control of the legislative

and executive branches. See Mistretta v. United States, 488

U.S. 361, 382 (1989) ("the Framers 'built into the tripartite

Federal Government ... a self-executing safeguard against

the encroachment or aggrandizement of one branch at the

expense of the other.' ") (quoting Buckley v. Valeo, 424 U.S. 1,

122 (1974)); United States v. Will, 449 U.S. 200, 217-18 (1980)

("[a] Judiciary free from control by the Executive and Legis-

lature"); The Federalist No. 78 (Hamilton). After all, "Arti-

cle III creates[ ] not a batch of unconnected courts, but a

judicial department composed of 'inferior Courts' and 'one

supreme Court.' " Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 227 (1995) (emphasis in original).

That individual judges are direct beneficiaries of the tenure

and salary protections of Article III by itself hardly shows

that the overarching purpose of these provisions was to

insulate individual judges against the world as a whole (in-

cluding the judicial branch itself), rather than, as the cases

above indicate, to safeguard the branch's independence from

its two competitors. For support of his view Judge McBryde

points to a footnote from Northern Pipeline Const. Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982), in which the

Court said that the two guarantees "serve other institutional

values as well," among them "insulat[ing] the individual judge

from improper influences not only by other branches but by

colleagues as well." Id. at 59 n.10. But the primary value

the Court asserted was "to ensure the independence of the

Judiciary from the control of the Executive and Legislative

Branches of government." Northern Pipeline, 458 U.S. at 59.

The conclusion that other values are also in play is a far cry

from Judge McBryde's argument that the individual judge

must be constitutionally sheltered not merely from removal

and salary diminution but also from lesser sanctions of every

sort. Lesser sanction are common, as the Court has noted:

Many courts ... have informal, unpublished rules which

... provide that when a judge has a given number of

cases under submission, he will not be assigned more

cases until opinions and orders issue on his 'backlog.'

These are reasonable, proper, and necessary rules, and

the need for enforcement cannot reasonably be doubted.

Chandler, 398 U.S. at 85. As there is no basis for Judge

McBryde's core assumption that judicial independence re-

quires absolute freedom from such lesser sanctions, his two

claims fall swiftly.

Judge McBryde frames his separation of powers claim as

whether the Constitution "allocates the power to discipline

federal judges and, if so, to which branches of government."

App. Br. at 54. Finding that it allocates the power to

Congress in the form of impeachment, he concludes that it

excludes all other forms of discipline. But Judge McBryde's

attempt to fudge the distinction between impeachment and

discipline doesn't work. The Constitution limits judgments

for impeachment to removal from office and disqualification

to hold office. U.S. Const. art. I, s 3, cl. 7. It makes no

mention of discipline generally. The Supreme Court recently

observed that it accepted the proposition that "[w]hen a

statute limits a thing to be done in a particular mode, it

includes a negative of any other mode." Christensen v.

Harris County, 529 U.S. 576, 583 (2000) (internal citations

omitted). But application of the maxim depends on the

"thing to be done." Here the thing to be done by impeach-

ment is removal and disqualification, not "discipline" of any

sort.

The Constitution itself preserves criminal prosecution, see

U.S. Const. art. I, s 3, cl. 7 ("the Party convicted shall

nevertheless be liable and subject to Indictment, Trial, Judg-

ment and Punishment, according to Law"), and at least three

circuits have held that prosecution of judges can precede

impeachment. See United States v. Claiborne, 727 F.2d 842,

845 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706,

710 (11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124,

1140-44 (7th Cir. 1974). Even Justices Douglas and Black,

who dissented in Chandler from the Court's narrowly framed

denial of relief for a district judge whose colleagues had

limited his case assignments, acknowledged that judges were

subject to criminal prosecution. See Chandler 398 U.S. at

140 ("If they break a law, they can be prosecuted. If they

become corrupt or sit in cases in which they have a personal

or family stake, they can be impeached by Congress.") (Doug-

las, J., dissenting); id. at 141-42 ("[J]udges, like other people,

can be tried, convicted, and punished for crimes.") (Black, J.,

dissenting).

Judge McBryde accepts that judges are subject to prosecu-

tion, but argues that impeachment nonetheless excludes disci-

pline of judges by judges. In yet another attempt to prove

his individualized idea of judicial independence, he points to

Hamilton's statement in Federalist No. 79 that: "The precau-

tions for [judges'] responsibility are comprised in the article

respecting impeachments.... This is the only provision on

the point, which is consistent with the necessary indepen-

dence of the judicial character, and is the only one which we

find in our own Constitution in respect to our own judges."

The Federalist No. 79 at 532-33 (Hamilton) (Jacob E. Cooke,

ed., 1961) (emphasis added). But even if we assume the

remark embraces not merely removal and disqualification but

lesser forms of discipline, it does not seem likely to have been

aimed at intra-branch constraints. Hamilton's concern with

judicial independence seems largely to have been directed at

the threat from the two other branches. "I agree that 'there

is no liberty, if the power of judging be not separated from

the legislative and executive powers.' " The Federalist No.

78 at 523 (Hamilton) (Jacob E. Cooke, ed.) (quoting Montes-

quieu). And he famously characterized the judiciary as "the

least dangerous" branch. Id. at 522. Thus it seems natural

to read Hamilton as seeing the guarantees of life tenure and

undiminished compensation, and the limited means for deny-

ing a judge their protection, simply as assuring independence

for the judiciary from the other branches. The Supreme

Court has considered the same passage as Judge McBryde

invokes and so interpreted it: "In our constitutional system,

impeachment was designed to be the only check on the

Judicial branch by the Legislature." Nixon v. United States,

506 U.S. 224, 235 (1993) (some emphasis added).

Indeed, the Hamiltonian concern for protecting the judicia-

ry from other branches argues for internal disciplinary pow-

ers. Arrogance and bullying by individual judges expose the

judicial branch to the citizens' justifiable contempt. The

judiciary can only gain from being able to limit the occasions

for such contempt. See In re Certain Complaints Under

Investigation by an Investigating Committee of the Judicial

Council of the Eleventh Circuit, 783 F.2d 1488, 1507-08 (11th

Cir. 1986)

Judge McBryde invokes another element of constitutional

history--the framers' consideration and rejection of the pro-

posal to vest the impeachment power in the courts, or in some

combination of judicial and legislative officers. But, as was

true of the effort to find a negative implication in the Consti-

tution itself, this tells us only what we already knew: that the

framers lodged the powers of removal and disqualification

solely in Congress, in the form of impeachment.

Judge McBryde acknowledges, as he must, that in other

contexts the impeachment power does not exclude all intra-

branch discipline. In Myers v. United States, 272 U.S. 52

(1926), the Supreme Court found (in the strongest form--

against a contrary decision by Congress) that the President

had power to remove civil officers, excluding judges, even

though Congress would have been able to remove some of the

same officers only through impeachment. While that power

is not absolute, its limitation does not depend on the exclusive

power of Congress to impeach. See Morrison v. Olson, 487

U.S. 654, 691 (1988)

Judge McBryde would have us write off the Court's en-

dorsement of executive branch discipline as peculiar to and

dependent on the executive's hierarchical structure. But the

question is the implication from the Constitution's vesting of

impeachment power in Congress. The Constitution makes no

distinction between judges and other officers. It provides

only that "all civil Officers of the United States, shall be

removed from Office on Impeachment." U.S. Const. art. II,

s 4.

In short, the claim of implied negation from the impeach-

ment power works well for removal or disqualification. But it

works not at all for the reprimand sanction, which bears no

resemblance to removal or disqualification and is the only

sanction in the case that remains unmoot.5 Thus Judge

McBryde's textual argument fails. Given the benefits to the

judiciary from intra-branch efforts to control the self-

indulgence of individual judges, we see no basis for inferring

structural limits on Congress's enabling such efforts.

Judge McBryde's second facial claim is that the Constitu-

tion, even assuming it does not altogether bar intra-judicial

sanctions (other than by appeal, mandamus, etc.), flatly bars

any such sanction for "anything to do with anything that

happened when the judge ... was acting and deciding cases

or in any phase of the decisional function." Oral Arg. Tr. at

17-18. His counsel was quite explicit that this would include

a judge's nakedly racist disparagement of counsel, id. at 9,

indeed, "anything that the judge does verbally or physically

in the course of adjudication," id. at 8. Asked whether this

would include punching counsel, Judge McBryde's counsel

__________

5 Obviously, we do not decide whether a long-term disqualifica-

tion from cases could, by its practical effect, affect an unconstitu-

tional "removal."

suggested that criminal proceedings at state law would supply

an ample remedy. Id. at 9.

It may help put Judge McBryde's theory in perspective to

look at one of the many episodes that led to the present

sanctions. In 1992, Judge McBryde sanctioned a lawyer

appearing before him for failing to have her client attend a

settlement conference in violation of Judge McBryde's stan-

dard pretrial order, which required all principals to attend

the conferences. Counsel represented a corporation and its

employee, defendants in a suit in which plaintiffs, a woman

and her 10-year old daughter, had alleged sexual harassment.

One of the allegations was that the individual defendant "had

terrorized the 10-year old ... by popping out his glass eye

and putting it in his mouth in front of her." Committee

Report at 19. The lawyer thought the presence of the

individual defendant would be counter-productive to settle-

ment efforts; the individual had no assets and had given her

full authority to settle. See id. at 20.

After chastising the lawyer, Judge McBryde required that

she attend a reading comprehension course and submit an

affidavit swearing to her compliance. See id. at 20. The

attorney submitted an affidavit attesting to the fact that she

found a course and attended for three hours a week for five

weeks. Judge McBryde challenged her veracity and required

that she submit a supplemental affidavit "listing 'each day

that she was in personal attendance at a reading comprehen-

sion course in compliance with [the] court's order; the place

where she was in attendance on each date; the course title of

each course; how long she was in attendance on each day;

and the name of a person who can verify her attendance for

each day listed.' " Id. at 22. She complied. The Special

Committee characterized this incident as reflecting a "gross

abuse of power and a complete lack of empathy." Id. at 18.

Judge McBryde tells us that the defendants unconstitutional-

ly impugn judicial independence when they express a formal,

institutional condemnation of this sort.

We assume arguendo that the procedures of the Act may

not constitutionally be used as a substitute for appeal. But

Judge McBryde's theory plainly goes well beyond judicial

acts realistically susceptible of correction through the avenues

of appeal, mandamus, etc. Appeal is a most improbable

avenue of redress for someone like the hapless counsel blud-

geoned into taking reading comprehension courses and into

filing demeaning affidavits, all completely marginal to the

case on which she was working. Possibly she could have

secured review by defying his orders, risking contempt and

prison. But we are all at a loss to see why those should be

the only remedies, why the Constitution, in the name of

"judicial independence," can be seen as condemning the judi-

ciary to silence in the face of such conduct. Counsel punched

out by the judge could not even pursue a remedy by risking

contempt, of course, since the punch involves no judicial order

that he could disobey.

The Court said in Chandler, in dictum to be sure:

There can, of course, be no disagreement among us as to

the imperative need for total and absolute independence

of judges in deciding cases or in any phase of the

decisional function. But it is quite another matter to say

that each judge in a complex system shall be the absolute

ruler of his manner of conducting judicial business.

398 U.S. at 84. As we noted above, we see nothing in the

Constitution requiring us to view the individual Article III

judge as an absolute monarch, restrained only by the risk of

appeal, mandamus and like writs, the criminal law, or im-

peachment itself. We thus reject Judge McBryde's facial

constitutional claims.

* * *

The process of construing s 372(c)(10) led us to raise and

answer the question whether the Review Committee was

authorized to entertain Judge McBryde's constitutional as-

applied challenges, and we concluded that it was. The Com-

mittee, as we noted, has given a contrary answer. As we

read s 372(c)(10) to deny us the authority to review any

aspect of the decisions about Judge McBryde other than the

facial constitutional claims, we have no authority to mandate

the Committee's consideration of the as applied claims. We

believe, nonetheless, that the Review Committee should re-

consider its view in light of our opinion and we therefore

request it to do so.

* * *

Accordingly, the judgment of the district court as to the

one-year and three-year suspensions is vacated and the judg-

ment as to the reprimand is affirmed.

So ordered.

Tatel, Circuit Judge, concurring in part and dissenting in

part: I agree with the court in many respects: that Judge

McBryde's challenge to the reprimand is not moot; that the

Judicial Councils Reform and Judicial Conduct and Disability

Act of 1980 is not facially unconstitutional; and that the Act

bars us from reviewing Judge McBryde's statutory claims. I

do not agree, however, that the Act precludes us from review-

ing Judge McBryde's as-applied constitutional claims. I

would therefore have reached those claims and, because I

think one claim has merit, reversed the district court and

directed that the matter be remanded to the Fifth Circuit

Judicial Council for further proceedings. Although the Coun-

cil's Report finds that Judge McBryde engaged in some

clearly egregious and sanctionable conduct, the Report also

describes judicial conduct that was either less clearly abusive

or apparently quite appropriate, and the Report never ade-

quately explains how--or even in some instances whether--

such behavior rises to the level of a clear abuse of judicial

power. The Report thus leaves open the possibility that

Judge McBryde was sanctioned in part for behavior that was

not at all abusive. In addition, because the Report is impre-

cise and leaves much conduct unexplained, using the Report

as a basis for sanctions risks chilling other district judges'

ability to manage their courtrooms effectively. I thus believe

that the Council's actions amounted to an unconstitutional

infringement of judicial independence.

I

This case has its origins in a prior dispute between Judge

McBryde and his colleagues over certain case assignments.

In late April and early May of 1995, Chief Judge Buchmeyer

of the Northern District of Texas reassigned two cases,

United States v. Satz, No. 4:94-CR-094-R (N.D. Tex.) and

Torres v. Trinity Industries, Inc., No. CA4-90-812-A (N.D.

Tex.), from Judge McBryde to himself. The reassignments

responded to Judge McBryde's allegedly "unwarranted" and

"abusive" treatment of attorneys and court personnel. See In

re John H. McBryde, 117 F.3d 208, 215-18 (5th Cir. 1997).

In Satz, Judge McBryde had found an Assistant United

States Attorney in contempt of court for, among other things,

stating that a sealing order in a related federal case prevent-

ed her from answering certain of Judge McBryde's questions.

Judge McBryde believed, erroneously as it turned out, that

no such order existed. Id. at 213. Torres involved corre-

spondence between Judge McBryde and the clerk of the court

over an administrative error that had resulted in a court-

approved settlement not being implemented. Judge

McBryde wrote that a letter from the clerk had been "so

unprofessional and so disrespectful ... that it borders on, if it

does not constitute, contempt of court." Id. at 215.

After Chief Judge Buchmeyer reassigned the two cases,

Judge McBryde filed a Request for Assistance with the Fifth

Circuit Judicial Council. Id. at 217. Fifth Circuit Chief

Judge Politz referred the matter to a Special Investigatory

Committee composed of himself, two fellow circuit judges,

and two district judges. Id. Following several days of

hearings, the Special Committee, relying on section 332 of the

Act, upheld the reassignment, finding that "Judge McBryde's

conduct in both cases was unwarranted." Id. Judge

McBryde's attack on the AUSA and a second government

official involved in Satz "and his accusations against them of

lying and contempt of court," the Committee concluded,

"were baseless, threatening irreparable damage to [their]

professional reputations and careers." Id. His attack on the

clerk of the court was likewise "unwarranted [and] abusive,

and threatened to damage [her] professional reputation." Id.

Almost two years later, the Fifth Circuit vacated the

reassignment order. According to the court, the Council had

no authority "to censure a judge under [section] 332" of the

Act or to "order a case reassigned based on its disagreement

with the district judge's factual findings." McBryde, 117

F.3d at 229. In reaching its conclusion, the court noted that

"finders of fact could reasonably defend either side" of the

dispute, stating explicitly that Judge McBryde "could piece

together a number of facts that pointed to the larger conclu-

sion that [the AUSA involved in the Satz case] was lying,"

that the Judge "delivered a cogent statement of his reasons

for rejecting [the AUSA's] reliance on a broad sealing order,"

that "[w]e need not attribute paranoia or irrationality to

Judge McBryde to explain his view that [the AUSA's] conten-

tions about the sealing order were untruthful," and that

"Judge McBryde's understanding of the factual basis for

suspecting that [the court clerk in Torres] was on the verge of

contempt was similarly within the bounds of reason." Id. at

218-19.

Meanwhile, shortly after Judge McBryde had requested

the Judicial Council's assistance and long before the Fifth

Circuit vacated the Special Committee's reassignment deci-

sion, Chief Judge Politz referred two complaints of miscon-

duct against Judge McBryde (one of which involved the

Judge's conduct in Satz) to the Special Committee, with

directions to investigate and report on them. Report of the

Special Committee of the Fifth Circuit Judicial Council

Regarding Complaints Against, and the Investigation into

the Conduct of, Judge John H. McBryde at 1 (Dec. 4, 1997).

According to the Committee's eventual Report, Committee

members were from the outset "concerned about two things:

first, that Judge McBryde [might] have a health problem

(physical or mental) which affect[ed] his activities as a judge,

and second, that Judge McBryde ha[d] engaged in a pattern

of abusive behavior as a federal judge." Id. at 3.

Pursuing its suspicions that Judge McBryde might suffer

from a psychiatric disorder, the Committee submitted certain

materials concerning Judge McBryde to two psychiatrists,

asking the doctors whether a psychiatric examination of the

Judge was warranted. Report at 3. When both doctors

answered yes, the Council engaged in a series of ultimately

unsuccessful efforts to get Judge McBryde to undergo such

an examination. Id. In the meantime, the Special Commit-

tee learned about "more and more instances of allegations of

repetitive, abusive and excessive conduct by Judge McBryde

beyond the allegations in the ... complaints." Id. at 8.

Therefore, invoking section 372(c)(5) of the statute, the Spe-

cial Committee "decided to broaden its investigation" to en-

compass incidents from throughout Judge McBryde's judicial

career. Id. In August, September, and October of 1997, the

Committee held nine days of evidentiary hearings in New

Orleans and Fort Worth. Id. at 9. Fifty-five witnesses

testified, including federal district court judges, a state court

judge, government and private attorneys who had practiced

before or had contact with Judge McBryde, court personnel,

former jurors who had served in Judge McBryde's courtroom,

and current and former members of the Judge's staff. Id. at

9-10.

Based on this evidence, the Committee prepared a Report,

the bulk of which set forth details concerning twenty-two

separate incidents involving Judge McBryde's dealings with

lawyers, fellow judges, a state judge, and the clerk of the

court. Report at 10-107. Although these include some obvi-

ously abusive and serious incidents, see, e.g., Maj. Op. at 24,

the Report also includes several incidents that appear to be

relatively trivial examples of a judge controlling a trial or of

friction among judicial colleagues. For example, the Report

describes an incident in which Judge McBryde, responding to

defense counsel's claim that a prosecutor should have dis-

closed certain financial schedules, accused the prosecutor of

adopting "a sort of cat-and-mouse approach to discovery."

Id. at 50. The judge neither dwelled on the matter nor

imposed sanctions. Id. In another incident (that occurred in

a parking lot), Judge McBryde became angry and lashed out

at a fellow judge who had joked about the Judge's impatience.

Id. at 101-03. On still another occasion (at a judges' meet-

ing), Judge McBryde called two fellow judges "despicable."

Id. at 103-04. Similar incidents appear throughout the Re-

port: Judge McBryde was "not always solicitous of his fellow

judges' needs or feelings" with respect to use of courtrooms,

id. at 106; on learning that the lead public defender on a case

was engaged in another courtroom, Judge McBryde attempt-

ed to proceed with the case "[r]ather than calling another

matter on the docket," id. at 24; in a private, one-on-one

meeting with the Federal Public Defender, Judge McBryde

stated that he was "concerned" about the relationship be-

tween public defenders and U.S. Attorneys, indicating that he

"suspected" that defenders and U.S. Attorneys were engaged

in a " 'collusive effort' to subvert the Sentencing Guidelines,"

id. at 42.

The Report describes other conduct that, though apparent-

ly more abusive, might nonetheless be entirely appropriate

under certain circumstances. For example, the Report re-

counts several instances in which Judge McBryde accused

attorneys of bad faith, sometimes sanctioning them and some-

times not. See, e.g., Report at 10-15, 15-18, 36-42. The

Report also mentions two occasions on which Judge McBryde

criticized an entire office. See id. at 17-18 ("I have perceived

on more than one occasion recently that members of the

Federal Public Defender's Office are less than candid with

the court."); id. at 38 ("I just have the feeling that the Civil

Section of the U.S. Attorney's office here in Fort Worth is not

always candid with the Court....").

The Report also examines Judge McBryde's trial rules and

enforcement techniques. According to the Report, the Judge

uses strict trial rules, including "the requirement that parties

enter into ... stipulation[s] with respect to ... every uncon-

tested fact in [a] case," which are then "read seriatim to the

jury at the beginning of the case and may not be referred to

again later in the proceeding," and a "prohibition on asking

questions on cross-examination similar to questions asked of

[witnesses] on direct examination." Report at 107-08. Quot-

ing from transcripts in two cases, the Report states that

"Judge McBryde's manner of enforcing his rules is harsh and

often humiliating." Id. at 110. The Report describes the

testimony of several witnesses who stated that the combina-

tion of Judge McBryde's rules and his manner of enforcing

them creates an "oppressive and intimidating atmosphere

that pervades Judge McBryde's courtroom," id. at 116, and

has a "chilling effect" on these lawyers' ability to present

their cases effectively, id. at 121. This kind of enforcement,

the Report says, formed a "pattern" that had not changed

despite appellate criticism. Id. at 122. Because of the

chilling effect of Judge McBryde's rules and his manner of

enforcement, the Report concludes that attorneys, fearing

humiliation or embarrassment, forego actions they believe are

in their clients' best interests and fail to preserve issues for

appeal. These problems, the Report notes, are difficult to

correct through the appellate process. Id. at 121-22.

The Report acknowledges that some of Judge McBryde's

former staff testified that he was "cordial and considerate in

his dealings with them," and that several lawyers who testi-

fied on the Judge's behalf stated that he "prepares thorough-

ly, addresses motions promptly, ... writes scholarly opinions

on difficult legal questions," and moves cases through his

docket expeditiously. Report at 123-24. Although acknowl-

edging that these witnesses were comfortable practicing in

front of Judge McBryde and thought that he was fair, id. at

113-15, the Committee concluded that just because "it is

possible for some attorneys ... to adapt to Judge

McBryde's rules is not a vindication of these rules. The

weight of evidence presented during the hearings convinces

the Committee that Judge McBryde imposes unduly stringent

rules on advocates and enforces these rules in an often harsh

manner." Id. at 115-16.

Based on all of this evidence, the Report concludes (1) that

"many of these individual instances, together with the pat-

terns demonstrated over the years surveyed," indicate that

Judge McBryde had "engaged in conduct prejudicial to the

effective administration of the business of the courts," and (2)

that Judge McBryde's "pattern of abusive behavior ... has

brought disrepute upon the federal judiciary." Report at 150.

The Report recommends that the Council ask Judge

McBryde to resign, and if he refused, that it impose the three

sanctions--a reprimand and two suspensions--described in

the court's opinion. Maj. Op. at 3. The recommended repri-

mand states that Judge McBryde's "intemperate, abusive and

intimidating treatment of lawyers, fellow judges, and others

ha[d] detrimentally affected the effective administration of

justice ... in the Northern District of Texas," and that

Judge McBryde had "abused judicial power, imposed unwar-

ranted sanctions on lawyers, and repeatedly and unjustifiably

attacked individual lawyers and groups of lawyers and court

personnel," thus having a "negative and chilling impact on the

Fort Worth legal community," among other things "prevent-

ing lawyers and parties from conducting judicial proceedings

in a manner consistent with the norms and aspirations of our

system" and "harm[ing] the reputation of the court." Id. at

154.

Invoking section 372(c)(6) of the Act, the Council imposed

the three recommended sanctions. Six of the nineteen Coun-

cil members voted against imposing the one-year suspension;

two voted against the public reprimand; one voted against

the three-year recusal. Order of the Judicial Council of the

Fifth Circuit at 1, In re John H. McBryde (Jan. 7, 1998) (No.

95-05-372-0023).

Pursuant to the Act, Judge McBryde petitioned the Review

Committee of the Judicial Conference for review of the

Council's order. Granting "substantial deference" to the

Judicial Council's findings of fact, Memorandum and Order of

the Judicial Conference of the United States at 6, In re

Complaints of Judicial Misconduct or Disability (Sept. 18,

1998) (No. 98-372-001), and expressly declining to review any

of Judge McBryde's constitutional claims, id. at 21, the

Review Committee rejected the Judge's remaining procedural

and substantive complaints. Finding the one-year suspension

justified as a remedial, rather than a punitive, measure, the

Review Committee revised the Council's sanction in one

respect: it ordered the suspension terminated if Judge

McBryde demonstrates that he had "seized the opportunity

for self-appraisal and deep reflection in good faith and ...

made substantial progress toward improving his conduct."

Id. at 27.

II

My main disagreement with the court centers on section

372(c)(10)'s last sentence--the Act's review preclusion clause.

Unlike my colleagues, I do not believe that this clause pre-

vents us from reaching Judge McBryde's as-applied constitu-

tional claims.

As the court points out, under both Supreme Court and

D.C. Circuit precedent, we construe review preclusion clauses

to prevent review of constitutional claims only when we find

"clear and convincing" evidence of congressional intent to do

so. Maj. Op. at 10. Even outside the constitutional context,

a "general presumption favor[s] judicial review in the absence

of 'clear and convincing evidence of a contrary legislative

intent.' " Griffith v. Fed. Labor Relations Auth., 842 F.2d

487, 490 (D.C. Cir. 1988) (quoting Abbott Labs. v. Gardner,

387 U.S. 136, 141 (1967)). "The maxim that congressional

preclusion of judicial review must be 'clear and convincing'

applies in a particularly rigorous fashion ... when constitu-

tional claims are at stake." Id. at 494. As we said in Ungar

v. Smith, "[w]hen ... [a] plaintiff seeks to invoke the aid of

the judicial branch on constitutional grounds, the Supreme

Court and this court have both indicated that only the clear-

est evocation of congressional intent to proscribe judicial

review of constitutional claims will suffice to overcome the

presumption that the Congress would not wish to court the

constitutional dangers inherent in denying a forum in which

to argue that government action has injured interests that

are protected by the Constitution." 667 F.2d 188, 193 (D.C.

Cir. 1981). See also Webster v. Doe, 486 U.S. 592, 603 (1988)

("We require this heightened showing in part to avoid the

'serious constitutional question' that would arise if a federal

statute were construed to deny any judicial forum for a

colorable constitutional claim.") (quoting Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667, 681 n.12

(1986)).

In my view, the requisite "clear and convincing" evidence of

intent is absent here. As my colleagues acknowledge, section

372(c)(10) contains no language expressly barring constitu-

tional challenges. See Maj. Op. at 11. Indeed, Congress

knows how to preclude review of constitutional claims when it

wants to. For example, the federal statute governing depor-

tation and denaturalization provides that "[j]udicial review of

all questions of law and fact, including interpretation and

application of constitutional and statutory provisions, ...

shall be available only in judicial review of a final order under

this section." 8 U.S.C. s 1252(b)(9) (emphasis added).

In Ungar as well as in Ralpho v. Bell, we found statutes

containing language just as preclusive as section 372(c)(10)'s

insufficient to bar review of as-applied constitutional claims.

The statute in Ungar provided that administrative decisions

are "final" and "not ... subject to review by any court." 667

F.2d at 193 (internal quotation marks omitted). In Ralpho,

the statute provided that "[administrative decisions] shall be

final and conclusive for all purposes, notwithstanding any

other provision of law to the contrary[,] and not subject to

review." 569 F.2d 607, 613 (1977). Using equally preclusive

language, section 372(c)(10) provides that "[a]ll orders and

determinations [of the Judicial Conference] ... shall be final

and conclusive and shall not be judicially reviewable on appeal

or otherwise." 28 U.S.C. s 372(c)(10).

As my colleagues also note, see Maj. Op. at 11, absent

express statutory language, our prior opinions have "studied

the legislative history" in search of a "clear expression of

Congress's desire to prevent the courts from passing upon

... constitutional claims," Ungar, 667 F.2d at 196, or an

"affirmative statement addressed to preclusion of constitu-

tional claims." Griffith, 842 F.2d at 494. Here, as in Ral-

pho, Ungar, and Griffith, the legislative history includes no

direct comment at all about whether the Act's review preclu-

sion language was meant to cover constitutional challenges.

See Maj. Op. at 11 ("Of course if the [Griffith] trilogy is read

to require magic words expressly barring as applied constitu-

tional attacks, they are not to be found.").

Lacking a clear affirmative statement in the statute's text

or legislative history, my colleagues infer from the defunct

Senate version of the Act and its accompanying legislative

history that Congress intended the preclusion clause to cover

as-applied constitutional challenges. See Maj. Op. at 11-16.

Although this is certainly a plausible interpretation of the

legislative history, both Griffith and Ungar declined to treat

such inferences from prior versions of bills as sufficiently

clear evidence of congressional intent to preclude judicial

review of as-applied claims. In Griffith, the original Senate

bill provided that most decisions of the Federal Labor Rela-

tions Authority would be "final and conclusive" and not

subject to further judicial review, but provided an exception

for "questions arising under the Constitution." 842 F.2d at

495. The conference committee, rejecting the House's pro-

posal for expansive judicial review and generally adopting the

Senate's more restrictive approach, dropped "without expla-

nation" the exception for constitutional questions. Id. Nev-

ertheless, observing that circuit precedent required an "affir-

mative statement addressed to preclusion of constitutional

claims," id. at 494, we held that "[t]his silent deletion [was]

not enough, under our cases, to support an inference of intent

to preclude constitutional claims." Id.

The statute at issue in Ungar provided that Justice Depart-

ment decisions regarding claims for the return of assets

vested in the Office of Alien Property were not subject to

judicial review. Deciding that this provision did not preclude

review of as-applied constitutional claims, we noted that "[a]n

earlier version of the bill ... included an elaborate scheme

for trial of just-compensation claims in the Court of Claims,"

which was "deleted on the House floor for reasons that are

not wholly plain." We were nonetheless "not willing to

regard this as clear evidence of Congressional intent...."

667 F.2d at 195 n.2.

The evidence of legislative intent to preclude judicial review

that we declined to credit in Griffith and Ungar was, if

anything, stronger than in this case. In those cases, we

found legislative history insufficiently clear and convincing to

preclude as-applied challenges even though the original ver-

sions of the statutes at issue allowed review of constitutional

questions, while the final versions eliminated such provisions,

suggesting a movement toward precluding such review.

Here, by contrast, the legislative history suggests movement

away from preclusion. Senator DeConcini, one of the Act's

primary sponsors, introduced a Report prepared by Johnny

H. Killian, an American law specialist at the Library of

Congress, suggesting that under Supreme Court precedent,

Congress can safely preclude judicial review of constitutional

claims so long as "litigants at some point [have] access to an

Article III court." 125 Cong. Rec. 30,050 (1979) (statement of

Sen. DeConcini). Senator DeConcini's bill provided for re-

view of disciplinary decisions by a newly created, five-judge

Article III Court of Judicial Conduct and Disability. Id.

Later House revisions shifted review from the five-judge

court to the Judicial Conference. In doing so, the House

Judiciary Committee emphasized that it was moving from a

"court" to an "administrative model." Compare H.R. Rep.

No. 96-1313, at 4 (1980) ("[R]ather than creat[ing] luxurious

mechanisms such as special courts and commissions--with all

the trappings of the adversary process, including legal coun-

sel, written transcripts, discovery and cross examination--the

[House version of the bill] emphasize[s] placing primary

administrative responsibility within the judicial branch of

government.") with id. at 14 (stating that this "legislation

creates much more of an 'inquisitorial-administrative' model

than an 'accusatorial-adversary' one"). When the Act re-

turned to the Senate, Senator DeConcini made the same

point, explaining to his colleagues that the Judicial Confer-

ence, unlike the five-judge court proposed in the Senate

version of the bill, was "not an independent review court."

126 Cong. Rec. 28,090 (1980) (statement of Sen. DeConcini,

quoting the Killian Report); see also Chandler v. Judicial

Council of the Tenth Circuit, 398 U.S. 74, 86 n.7 ("[T]he

Judicial Council was intended to be ... an administrative

body functioning in a very limited area in a narrow sense as a

'board of directors' for the circuit."). Because Congress had

been informed by the Killian Report that it could safely

preclude review of constitutional questions only if such review

was available in an Article III court, and because it had also

been advised by both Senator DeConcini and the House

Judiciary Committee that the Judicial Conference was not an

Article III court, Congress would have understood that vest-

ing power to review disciplinary decisions in the Judicial

Conference opened those decisions to constitutional attack in

the federal courts.

Under all of these circumstances, I do not see how the

evidence of Congress's intent to preclude as-applied constitu-

tional challenges can be considered clear and convincing--or,

as we required of legislative history in Griffith, "unusually

clear." 842 F.2d at 494. Not only did both Griffith and

Ungar find similar inferences from legislative history insuffi-

cient to meet the clear and convincing standard, but in this

case, there is an equally plausible--if not more plausible--

interpretation of the legislative history that suggests Con-

gress did not intend to preclude review of as-applied constitu-

tional challenges.

My colleagues' observation about "substantial redundancy"

between review performed by the Judicial Conference and

Article III courts, see Maj. Op. at 15-16, is interesting, but I

think not dispositive. For one thing, while it is true that the

two forms of review are both performed by Article III judges,

I do not agree that they are entirely redundant: decisions of

Article III courts are reviewable on certiorari by the Su-

preme Court, a distinction of particular importance given the

constitutional interests at stake here. Even assuming they

were identical, moreover, such functional redundancy would

be convincing evidence of Congressional intent only if it were

the sole form of evidence available, and it isn't. In view of

Senator DeConcini's statement and the House Judiciary Com-

mittee Report, Congress most likely thought shifting review

from an Article III court to the Judicial Conference opened

decisions of the latter to as-applied constitutional challenges

in the federal courts. In my view, this primary evidence of

legislative intent outweighs any inferences that might be

drawn from whatever functional redundancy may exist.

Finally, my colleagues believe that preclusion of constitu-

tional claims would serve the statutory purpose of "pre-

vent[ing] undue prolongation of the disciplinary process."

Maj. Op. at 16. But we have twice found review preclusion

statutes designed to accomplish similar goals insufficient to

establish clear congressional intent to bar review of as-

applied constitutional claims. See Griffith, 842 F.2d at 495

(Congress's scheme to limit judicial review of FLRA decisions

was meant to promote "finality, speed[,] and economy," and

thus barred district court review of FLRA decisions on

statutory grounds, but review of as-applied constitutional

claims nonetheless was not precluded); Ungar, 667 F.2d at

195-96 (legislative history indicating that review preclusion

provision was "intended to reduce ... delay in adjudicating

claims under the Trading with the Enemy Act" was not a

"clear expression of Congress's desire to prevent the courts

from passing upon ... constitutional claims").

III

Having found no "clear and convincing" evidence that

Congress intended to preclude review of as-applied constitu-

tional challenges to judicial council sanctions, I would have

considered the merits of Judge McBryde's as-applied claims.

In addition to the challenges discussed by the court, see Maj.

Op. at 18-25, Judge McBryde raises the question whether the

Judicial Council unconstitutionally interfered with his judicial

independence by punishing him because it disagrees with his

judicial philosophy and acts: "Purportedly pursuant to the

Act, defendants investigated Judge McBryde's performance

of his judicial functions, requiring him to defend his perfor-

mance and disrupting his judicial activities. They then pun-

ished him, and changed his judicial status, because they

disapproved of his judicial performance, depriving him of all

new cases for one year ... and issuing a damning public

reprimand. Does the Act violate the judicial independence

doctrine of Article III on its face and as applied?" Appel-

lant's Opening Br. at 2. Answering this question, Judge

McBryde argues that "the Constitution does not allow agen-

cies to supervise his judging, disagree with his rulings, and

punish him because his rulings do not meet some 'norm' of

acceptable judicial conduct." Id. at 52-53. The Judicial

Conference disagrees: "Given the conduct engaged in and the

adverse effects on the judicial system in Fort Worth, Texas,

that conduct had, Appellees submit that it was not unconstitu-

tional to suspend assignment of new cases for up to one year

for [the Judge] to reflect and to change his conduct." Appel-

lees' Br. at 68-69.

I agree with my colleagues that the principle of judicial

independence does not "constitutionally shelter[ ]" Judge

McBryde from "sanctions of every sort." Maj. Op. at 20. I

also agree that the creation of a mechanism enabling Judicial

Councils to sanction judges for things that happened when

they were "acting and deciding cases" or engaged in some

other "phase of the decisional function" does not render the

Act facially unconstitutional. Cf. Chandler, 398 U.S. at 85

("Many courts--including federal courts--have informal, un-

published rules.... These are reasonable, proper, and nec-

essary rules, and the need for enforcement cannot reasonably

be doubted. [I]f one judge in any system refuses to abide by

such reasonable procedures, it can hardly be that the extraor-

dinary machinery of impeachment is the only recourse.").

For reasons I will explain, however, I do believe that the

principle of judicial independence permits sanctions to be

imposed only for conduct that is clearly abusive or clearly

prejudicial to the adversarial process, and in this case, I think

that Judge McBryde's conduct, as described in the Council's

Report, does not uniformly meet this standard.

As an initial matter, I believe the principle of judicial

independence guarantees to individual Article III judges a

degree of protection against interference with their exercise

of judicial power, including interference by fellow judges. As

my colleagues note, the Supreme Court expressly stated in

Northern Pipeline that the constitutional guarantee of life

tenure "insulates the individual judge from improper influ-

ences not only by other branches but by colleagues as well,

and thus promotes judicial individualism." Northern Pipe-

line Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59

n.10 (1982). Similarly, in Chandler, a case involving intra-

judicial discipline, the Supreme Court stated that "[t]here

can, of course, be no disagreement among us as to the

imperative need for total and absolute independence of judges

in deciding cases or in any phase of the decisional function."

398 U.S. at 84. See also In re Certain Complaints Under

Investigation by an Investigating Committee of the Judicial

Council of the Eleventh Circuit, 783 F.2d 1488, 1506-07 (11th

Cir. 1986) (noting, in the context of adjudicating the facial

constitutionality of certain provisions of the Act, that "the

majority [in Chandler] located a judge's protected indepen-

dence ... 'in deciding cases or in any phase of the decisional

function,' " and then framing its basic inquiry as "whether

[the] direct or indirect effects ... the Act may have on an

individual judge's independence are within proper toler-

ances").

The notion that individual judges enjoy a sphere of protect-

ed independence finds support in the cases establishing that

judges cannot be held liable for damages arising out of

performance of their judicial duties. "[I]t is a general princi-

ple of the highest importance to the proper administration of

justice," the Supreme Court stated in Bradley v. Fisher, "that

a judicial officer, in exercising the authority vested in him,

shall be free to act upon his own convictions, without appre-

hension of personal consequences to himself. Liability to

answer to every one who might feel himself aggrieved by the

action of the judge, would be inconsistent with the possession

of this freedom, and would destroy that independence without

which no judiciary can be either respectable or useful." 80

U.S. 335, 347 (1871). Similarly, in Pierson v. Ray, the Court

stated that "[f]ew doctrines were more solidly established at

common law than the immunity of judges from liability for

damages for acts committed within their judicial jurisdic-

tion.... This immunity applies even when the judge is

accused of acting maliciously and corruptly, and it is not for

the protection or benefit of a malicious or corrupt judge, but

for the benefit of the public, whose interest it is that the

judges should be at liberty to exercise their functions with

independence and without fear of consequences." 386 U.S.

547, 553-54 (1967). Cf. Quercia v. United States, 289 U.S.

466, 469 (1933) ("Under the Federal Constitution the essential

prerogatives of the trial judge as they were secured by the

rules of the common law are maintained in the federal

courts.").

Of particular relevance to this case, I believe the sphere of

individual judicial independence--the protected "decisional

function," as Chandler puts it, 398 U.S. at 84--includes not

only judges' freedom to reach their own conclusions about

questions of fact and law, but also a margin of discretion to

manage and control the adversarial process within their

courtrooms. "Courts of justice," the Supreme Court has

explained, "are universally acknowledged to be vested, by

their very creation, with power to impose silence, respect, and

decorum, in their presence, and submission to their lawful

mandates. These powers are governed not by rule or statute

but by the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious

disposition of cases." Chambers v. Nasco, Inc., 501 U.S. 32,

43 (1991) (internal citations and quotations omitted). And as

we have recognized, the exercise of this power requires that

"a district judge ha[ve] wide discretion in monitoring the flow

of a criminal trial. It is well within her discretion to rebuke

an attorney, sometimes harshly, when that attorney asks

inappropriate questions, ignores the court's instructions, or

otherwise engages in improper or delaying behavior....

There is a 'modicum of quick temper that must be allowed

even judges.' " United States v. Donato, 99 F.3d 426, 434

(D.C. Cir. 1997) (quoting Offutt v. United States, 348 U.S. 11,

17 (1954)).

A judge's authority to control the courtroom is essential to

the exercise of judicial power. Unlike legislative and execu-

tive power, the judicial power created by Article III can be

exercised only on the basis of a factual record developed

pursuant to established standards of relevance and authentici-

ty. See Fed. R. Evid. 402 (requiring that evidence be relevant

to be admissible), 901 (requiring that evidence be authentic to

be admissible). Critical to the development of a proper

record is a well-functioning adversarial process in which

lawyers serve both as zealous representatives of their clients

and as officers of the court with responsibilities for fairness

and disclosure that transcend their clients' interests. Unless

judges can manage this process, if necessary by using both

formal and informal disciplinary measures to ensure that

lawyers perform their dual functions effectively and in accor-

dance with established rules of practice and procedure, they

may lack the fully developed record needed to exercise their

judicial authority.

Judges' power to control the adversarial process, of course,

is not absolute. Inappropriate trial management, for exam-

ple, can undermine a trial's fairness. See, e.g., Offutt, 348

U.S. at 17 (explaining that trial judge's becoming personally

embroiled with defense counsel compromised the court's "at-

mosphere of austerity" that is "consonant with a fair trial");

Donato, 99 F.3d at 291-92 (finding that judge's failure to

provide counsel with bench conference outside the jury's

presence violated Federal Rule of Criminal Procedure 30 and

constituted prejudicial error); Santa Maria v. Metro-North

Commuter RR, 81 F.3d 265, 273 (2d Cir. 1996) (finding that a

trial judge's expressed antipathy toward and removal of trial

counsel sufficiently prejudiced a defendant so as to require a

new trial). A judge's abusive treatment of attorneys can

prevent them from effectively defending their clients' inter-

ests. See In re McConnell, 370 U.S. 230 at 236 (1962)

("While we appreciate the necessity for a judge to have the

power to protect himself from actual obstruction in the court-

room ... it is also essential to a fair administration of justice

that lawyers be able to make honest good-faith efforts to

present their clients' cases."). Abusive treatment of lawyers

can undermine the judiciary's reputation, threatening its in-

tegrity in the eyes of the public. Cf. In re Certain Com-

plaints, 783 F.2d at 1507 ("The judiciary as a whole ... has a

interest in seeing that non-frivolous complaints are looked

into, to the end that the judge, and the system he exemplifies,

be exonerated or, if not that the public perceive that the

system has undertaken to police itself, within constitutional

limits, of course."); S. Rep. No. 96-362, at 7 (1979), reprinted

in 1980 U.S.C.C.A.N. 4315, 4321 ("The perception of a viable

healthy judiciary is of critical importance to our system of

justice."). As the Supreme Court has said, "an independent

judiciary and a vigorous, independent bar are both indispens-

able parts of our system of justice." McConnell, 370 U.S. at

236 (emphasis added).

It is thus appropriate for Judicial Councils, acting pursuant

to their general disciplinary power under section 372(c), to

ensure that judges' trial management techniques do not inter-

fere with the "effective and expeditious administration of the

business of the courts." 28 U.S.C. s 372(c)(1). After all,

Congress has authority to "limit[ ]" courts' inherent powers--

including their power to manage trials--"by statute and rule,

for these courts were created by act of Congress." Cham-

bers, 501 U.S. at 47 (internal quotation marks omitted); see,

e.g., McConnell, 370 U.S. at 233-34 (noting that Congress has

limited courts' inherent powers to sanction attorney contempt

by requiring such sanctions to be no more severe than

necessary).

This does not mean that Congress may infringe--or autho-

rize Judicial Councils to infringe--upon judges' trial manage-

ment authority in any manner it sees fit. It is a familiar

principle that even though Congress has the power to create

lower federal courts and organize their functioning in certain

respects, it can neither interfere with nor alter essential

features of their operation. See, e.g., Plaut v. Spendthrift

Farms, 514 U.S. 211, 240 (holding that Congress may not

pass legislation that reopens final judgments of federal

courts). Having vested authority to conduct trials in individ-

ual district judges, Congress cannot grant Judicial Councils

the power to interfere with those judges' trial management

authority to such an extent that judges cannot exercise it

effectively. Cf. In re Holloway, 995 F.2d 1080, 1088 (D.C.

Cir. 1993) (observing that absent a judge's ability to control a

trial with enforceable sanctions, "trials would wander down

every by-way, no matter how impermissible, in a sprawling

chaos that would render the adjudication close to random. In

the long run, such chaos is hardly in the interests of defen-

dants as a whole, much less in the interest of society.").

Congressional delegation of such authority would also violate

the principle of separation of powers, which prevents not only

the aggrandizement of one branch of government at the

expense of another, but also the disruption by one branch of

another's essential functions. See Morrison v. Olson, 487

U.S. 654, 675 (1988) (noting that "separation-of-powers con-

cerns ... would arise" if Congress's power to provide for

interbranch appointments of inferior officers "had the poten-

tial to impair the constitutional functions assigned to one of

the branches"); Mistretta v. United States, 488 U.S. 361, 404

(1989) (stating that the "ultimate inquiry" whether executive

appointment of Article III judges to administrative posts

violated separation of powers principles turned on whether

the "particular extrajudicial assignment undermines the in-

tegrity of the Judicial Branch").

Thus, while I agree that in order to discourage the improp-

er use of judicial power, protect the fairness of trials, and

safeguard the integrity and reputation of the judiciary, it is

appropriate to allow judicial councils to sanction judges for

abusing their trial management power, I also believe that, to

prevent such disciplinary action from encroaching upon legiti-

mate and necessary uses of that power, such sanctions should

be employed only for conduct that, viewed from the perspec-

tive of reasonable judges and lawyers, is clearly abusive

toward counsel or clearly prejudicial to the adversarial pro-

cess.

A rigorous standard of this kind is essential for several

reasons. First, absent such a standard, judicial councils could

more easily use their disciplinary authority to sanction non-

abusive judicial behavior. Federal judges are not all alike:

there are as many appropriate courtroom management tech-

niques as there are judges. In any given situation, moreover,

there will generally be more than one appropriate way to

manage a trial or demand attorney compliance with court

orders and rules. One judge may use a light touch to get an

aggressive lawyer to end an entirely inappropriate line of

questioning; another judge may threaten sanctions. Allow-

ing judges to punish each other absent evidence of clear

abuse of counsel or clear damage to the adversarial process

risks turning judicial discipline into a vehicle for sanctioning

stylistic disagreements over trial techniques.

Second, some Judicial Council members, such as appellate

judges, may have little or no experience dealing with aggres-

sive trial lawyers who routinely test the limits of proper

advocacy. To such judges, the trial management techniques

needed to control these lawyers may seem harsh, even abu-

sive. A rigorous standard that restricts sanctions to instanc-

es of clearly abusive behavior will reduce the likelihood that

councils will sanction appropriate behavior out of inexperi-

ence. And quite apart from the problem of inexperience,

even judges can act unfairly--indeed vindictively--towards

colleagues. A rigorous standard will reduce, though of course

it cannot eliminate, the possibility that judicial discipline will

be used to sanction unpopular judges engaged in appropriate

behavior.

Third, judicial discipline, like civil liability for judicial acts,

can chill the proper exercise of judicial discretion. See Pier-

son v. Ray, 386 U.S. 547, 553-54 (1967) (holding that imposing

civil liability for acts committed to judicial discretion "would

contribute not to principled and fearless decisionmaking but

to intimidation"); cf. Williams v. United States, 156 F.3d 86,

91-92 (1st Cir. 1998) ("If chastened attorneys can enlist

appellate courts to act as some sort of civility police charged

with enforcing an inherently undefinable standard of what

constitutes appropriate judicial comment on attorney perfor-

mance, trial judges are more likely to refrain from speaking

and writing candidly. In our view, this chilling effect carries

with it risks that are far greater than those associated with

the evil of occasional overheated judicial commentary."). If

judges can be sanctioned for conduct that is only arguably or

possibly--as opposed to clearly--abusive, they may be reluc-

tant to employ stern measures even when necessary to keep

control of the adversarial process. This is especially true

because a trial judge's harsh words or tough sanctions, entire-

ly appropriate in the heat of a tense and hard-fought trial,

may seem abusive when viewed in retrospect through the

pages of a cold record.

The possibility of chilling legitimate judicial behavior also

means that, in cases like this one where judges are sanctioned

in part for the effect their behavior has on lawyers who

practice before them, judicial councils should apply an objec-

tive standard, asking not just what complaining lawyers felt,

but also how the judge's conduct would have affected reason-

able lawyers under similar circumstances. It is only natural

for lawyers to feel slightly constrained and irritated when

judges try to control them. If judicial councils fail to apply

an objective standard when evaluating lawyer reactions and

complaints, judges might fear discipline if enough disgruntled

lawyers file complaints or testify against them. Judges might

thus calibrate courtroom discipline to avoid displeasing law-

yers, refraining from strict measures even when necessary

and appropriate.

Finally, we have previously adopted a rigorous standard

where, as here, sanctions could damage an individual's repu-

tation. In Shepherd v. ABC, we held that courts cannot

impose discovery sanctions based on attorney misconduct

without clear and convincing evidence of the predicate wrong-

doing. 62 F.3d 1469, 1476-78 (D.C. Cir. 1995); see also

Addington v. Texas, 441 U.S. 418, 424 (U.S. 1979) (stating

that reputational interests "are deemed to be more substan-

tial than mere loss of money and some jurisdictions accord-

ingly reduce the risk to the defendant of having his reputa-

tion tarnished erroneously by increasing the plaintiff's burden

of proof"). If, because of the risk of imposing reputational

harm, Article III courts must apply a heightened standard

when sanctioning lawyers, a similar obligation should apply to

judicial councils when considering disciplining fellow judges.

Suspensions and, in particular, reprimands can cast long-

lasting shadows over a judge's career.

I recognize that under a heightened standard, some abusive judicial conduct

may be unsanctionable. Confining the disciplinary process to clear abuses of judicial power,

however, would not eliminate all means of dealing with less abusive conduct. Judges address

such conduct informally and collegially, and the President and Senate try to ensure that judicial

nominees possess the appropriate temperment to serve as life-tenured federal judges. Although

such efforts may be imperfect, it seems far wiser to tolerate some inappropriate judicial conduct

than to risk chilling appropriate judicial conduct throughout the federal judiciary.

With these principles in mind, I return to the facts of this

case.

IV

Several incidents described in the Council's Report, such as

the episode my colleagues recount, e.g., Maj. Op. at 24, are so

extreme and clearly abusive that, as the Special Committee

concludes in one instance, they speak for themselves. See

Report at 23 ("No more need be said with regard to this

incident."); see also, e.g., id. at 26-30 (describing Judge

McBryde's sanctioning the entire Federal Public Defender's

Office because a single attorney could not be reached for

forty-five minutes due to a misunderstanding); id. at 51-55

(describing Judge McBryde's berating an Assistant United

States Attorney and holding him in contempt of court because

a secretary had trouble connecting all of the parties to a

conference call); id. at 55-59 (describing Judge McBryde's

jailing an Assistant Public Defender who refused to answer a

question he believed might compromise attorney-client privi-

lege); id. at 60-65 (describing Judge McBryde's removing a

state court judge from McBryde's chambers without inquiring

why the state court judge was there). Had the Council

restricted its report to incidents like these, I would have no

trouble rejecting Judge McBryde's as-applied challenge, for

no reasonable judge would think behavior like this appropri-

ate.

Not all of the conduct described in the Report, however,

falls so clearly outside the bounds of appropriate judicial

behavior. The Report's main deficiency is that it never

adequately explains how such apparently less abusive con-

duct--ranging from the "cat-and-mouse" comment to accusa-

tions of lawyer bad faith to Judge McBryde's trial practice

rules--amounts to a clear abuse, or in some instances even an

abuse at all, of judicial power. The Report itself acknowl-

edges that at least one incident was "fairly trivial," but

suggests that "along with other incidents" it was "illustrative

of a pattern of conduct." Id. at 23. I recognize that trivial

conduct that would not be abusive if it happened once might

become so if repeated consistently over time. I also under-

stand that intra-judicial discipline may be an important means

of addressing patterns of behavior that cannot be corrected

through informal mechanisms or appellate review. See id. at

122; Carol Rieger, The Judicial Councils Reform and Judi-

cial Conduct and Disability Act: Will Judges Judge Judges?,

37 Emory L.J. 45, 78-80 (1988). That said, it is not at all clear

to me that the more trivial incidents the Report describes,

even if they occurred persistently, amounted to abuses of

judicial power. For example, I think it not at all obvious that

a judge who consistently employed phrases like "cat-and-

mouse approach to discovery," had difficult relations with

colleagues, or was "not always solicitous of his fellow judges'

needs or feelings" in the use of courtrooms, would be guilty of

abusing his judicial power. Although I understand the Com-

mittee's desire to include a sufficient number of incidents to

establish patterns of conduct, because I think that judicial

discipline must not interfere with judicial independence, the

Committee should have restricted its Report to incidents that,

if occurring repeatedly, would represent clear abuses of judi-

cial power. As it stands, the Report leaves unclear whether

the patterns formed by these more trivial incidents were at

all abusive, let alone clearly abusive. If they were abusive,

the Committee failed to explain why. The Report thus leaves

open the possibility that Judge McBryde was sanctioned in

part for legitimate judicial behavior. And absent an explana-

tion of how such conduct constitutes a clear abuse of judicial

power, imposing sanctions based on this record risks chilling

legitimate conduct by other judges.

In the second category of incidents presented in the Re-

port--those involving conduct that, although more clearly

bordering on the abusive, might nonetheless be entirely ap-

propriate under some circumstances, see supra at 5--I think

the Committee similarly failed to explain adequately what

made Judge McBryde's conduct clearly abusive, and thus

sanctionable. Consider, for example, the Report's description

of instances in which Judge McBryde accused attorneys of

bad faith. According to the Report, these incidents form a

pattern that reveals Judge McBryde's "proclivity to question

the integrity of attorneys appearing before him." Report at

124. Yet the Committee fails to establish that these inci-

dents, taken together, were clearly abusive. Much of the

Report's discussion simply recounts that on several occasions

Judge McBryde "exhibited distrust of attorneys' motives" and

"often directly accus[ed] them of lying or conspiring to de-

ceive him." Id. at 124-25. This in itself is unremarkable,

since evaluating attorney good faith is one of a trial judge's

functions.

The Report does suggest, however, that what sets these

incidents apart is that Judge McBryde's suspicions were

"unfounded," id. at 150, and that the Judge had "refus[ed] to

take simple steps to verify whether or not his suspicion of bad

faith on the part of others [was] justifiable." Id. at 126. I

agree that a pattern of consistent, unfounded accusations of

bad faith might well represent a clear, sanctionable abuse of

judicial power. In explaining why these accusations were

"unfounded" or otherwise problematic, however, the Commit-

tee gives little or no weight to how things would have looked

to an objectively reasonable judge in Judge McBryde's posi-

tion. In one case, for example, the Report states that "[w]e

believe [that an attorney accused of bad faith] told the Special

Committee the truth" when he testified that he had not lied

to Judge McBryde, Report at 17 n.4; yet the Report never

explicitly says whether Judge McBryde himself lacked any

reasonable basis for believing the lawyer was deceiving him.

Likewise, when describing the Torres incident, the Report

criticizes Judge McBryde's treatment of the clerk of the court

without considering whether the Judge had a reasonable

basis for thinking the clerk's conduct verged on contempt.

See id. at 72-78; cf. In re McBryde, 117 F.3d 208, 219 (5th

Cir. 1997) ("Judge McBryde's understanding of the factual

basis for suspecting that Clerk Doherty was on the verge of

contempt was similarly within the bounds of reason."). How

can conduct amount to a clear abuse of judicial power unless

that conduct seemed abusive to an objectively reasonable

judge? Put differently, it seems absurd to say that conduct is

clearly abusive if a reasonable judge under the circumstances

would have thought it appropriate.

The Report's discussion of the manner in which Judge

McBryde enforces his trial rules is similarly flawed. I agree

that if a judge "imposes unduly stringent rules on advocates

and enforces these rules in an often harsh manner," and if as

a result those rules "so restrict cross-examination that they

impede the effective administration of justice," that conduct

should be sanctionable. Report at 116. Yet the Report's

description of Judge McBryde's rules and their enforcement

includes many phrases and characterizations that encompass

perfectly legitimate trial practices: Judge McBryde's cases

are "replete with [the Judge's] constant admonishments to

counsel to move on to something else; not to allude to a

stipulated fact; and orders to (or threats to order) lawyers to

sit down during openings of the examination of witnesses," id.

at 110; "Judge McBryde ultimately uses the threat of con-

tempt and sarcasm to enforce his rules," id. at 111; "[t]he

Committee heard numerous additional examples of Judge

McBryde's interrupting a lawyer during the questioning of a

witness or conduct of the trial to enforce one or more of his

rules, sometimes in a harsh, threatening, or sarcastic man-

ner," id. at 113. To be sure, the Report also states that the

Committee was "fully cognizant of the notion that a trial

judge should be afforded broad discretion to manage and

conduct trials," and that Judge McBryde's "extreme and

unduly restrictive rules" and manner of enforcement were

"different not only in degree but also in kind from the wide

array of acceptable trial management rules." Id. at 121-22.

But simply stating this conclusion provides insufficient guid-

ance about why in Judge McBryde's case "admonishments to

counsel to move on," "the threat of contempt and sarcasm," or

other routine conduct amounted to a clear abuse of judicial

power. Because this section of the Report contains too much

general language that could describe any judge's appropriate

courtroom conduct, resting sanctions on these descriptions

could chill the legitimate exercise of judicial power.

The Council failed in other ways to take sufficient account

of the Report's chilling effect. In its discussions of Judge

McBryde's accusations of attorney bad faith, for example, the

Report never acknowledges that judges must often assess

attorney good faith, or that it is not necessarily out of order

for a judge to attempt to send a message to an entire office

that has given him problems in the past. See Bonds v.

District of Columbia, 93 F.3d 801, 805 n.7 (D.C. Cir. 1996)

("If they [the District's counsel] don't show, you proceed

without them. If the witnesses don't show, I'll hold them in

contempt. That's the only way I can deal with the District of

Columbia Government these days.") (quoting trial transcript).

Nor does the Report sufficiently acknowledge that district

judges need a reasonable margin of error in making findings

of bad faith, especially when presiding over tense trials

calling for quick decisions to control the behavior of aggres-

sive lawyers. Nor, finally, does the Report recognize that

assessments of attorney bad faith are not necessarily abusive

even if later set aside on appeal. See Report at 14-15 ("The

Fifth Circuit ... noted that there was no evidence of bad

faith on the [accused party's] part."). To avoid chilling

appropriate judicial conduct, I think the Committee should

have explained more thoroughly and more explicitly how

Judge McBryde's behavior differed from permissible exercis-

es of judicial power.

The Council's insensitivity to the potentially chilling effect

of its Report is likewise apparent in its discussion of the

impact Judge McBryde's behavior had on others. Describing

the effect of Judge McBryde's enforcement of his trial rules

upon the adversarial process, as well as the impact of the

Judge's abusive treatment of attorneys upon the Fort Worth

legal community as a whole, the Committee often seems to

credit the views of witnesses who testified before it without

ever determining whether those views represented what rea-

sonable lawyers would have felt in similar circumstances.

The Report explains, for example, that the prosecutor Judge

McBryde accused of using a "cat-and-mouse approach to

discovery" left legal practice in part as a result of that

incident, quoting at length the attorney's explanation of why

the threat of Judge McBryde's treatment led him to leave his

job. See Report at 51. Similarly, the Report cites the

testimony of numerous lawyers who stated that they felt

oppressed, harassed, afraid to ask questions, and generally

unable to function effectively in Judge McBryde's courtroom.

See id. at 116-21, 132-37.

I agree that a judge whose harsh management of trials

makes it impossible for lawyers to practice in front of him

creates a serious problem. I also understand that proving

that a judge had such an effect requires testimony from

lawyers who practice before the judge. But in examining the

testimony of such lawyers, the Committee should have at-

tempted to discern not simply whether Judge McBryde had a

disruptive effect on the Fort Worth legal community, but also

whether his conduct would clearly prejudice the ability of

reasonably resilient and thick-skinned lawyers to present

their cases effectively.

In sum, I have no doubt that several of Judge McBryde's

actions were clearly sanctionable: they were flagrant abuses

of judicial power. In its understandable desire to be thor-

ough, however, the Committee included in its Report many

actions and incidents which either seem to be entirely appro-

priate or involve conduct that might have been appropriate

under some circumstances. I understand that even actions

which are not obviously and flagrantly abusive on their face

can be abusive either in context or as part of a pattern.

Because of the fundamental importance of judicial indepen-

dence and the risk that sanctions could punish or chill legiti-

mate judicial behavior, however, I think that sanctioning such

conduct requires judicial councils to explain precisely how and

why it rises to the level of a clear abuse of judicial power.

Here, the Committee's Report falls far short of this standard.

I would therefore have remanded the case to the Council with

instructions to limit its Report to evidence that, when viewed

objectively, demonstrates a pattern of conduct that amounts

to a clear abuse of judicial power, or a pattern of conduct

clearly prejudicial to the adversarial process, and then in

light of this sharpened record, to re-evaluate the appropriate-

ness of the sanctions and to impose those sanctions deemed

necessary to deter future misconduct by Judge McBryde and

other judges and to preserve the reputation and integrity of

the federal judiciary.

V

Because my colleagues recognize that Judge McBryde's

challenge to the reprimand is not moot, the substance of the

foregoing analysis is largely unaffected by their view that his

challenge to the suspensions is moot. But because under my

colleagues' theory of mootness, a judge suspended for only a

few years but not reprimanded would never be able to

challenge the suspension, I respectfully register my disagree-

ment with this aspect of the court's opinion. In my view,

Judge McBryde's challenge to his suspensions is not moot for

two independent reasons. First, the suspensions--which re-

main published on the Fifth's Circuit's web site, see

http://www.ca5.uscourts.gov/mcbryde/council.htm (last visited

Sept. 6, 2001)--give rise to ongoing stigmatic and reputational

injury at least as serious as that of the reprimand. Second,

Judge McBryde raises an issue that seems "capable of repeti-

tion yet evading review." Weinstein v. Bradford, 423 U.S.

147, 149 (1975). Although this court's opinion puts Judge

McBryde on notice that his peers can constitutionally sanction

him for some inappropriate in-court conduct, see Maj. Op. at

25, the opinion leaves unclear precisely what kind of conduct

would trigger sanctions. The court never decides whether it

was constitutional for the Judicial Council to have sanctioned

Judge McBryde for the conduct described in the Report, and

I do not think informing Judge McBryde in the abstract that

he must give his colleagues at least a "modicum of civility and

respect," id., provides much guidance about what kind of

conduct is constitutionally sanctionable. Thus, even assuming

that Judge McBryde accepts the court's conclusion that his

peers can punish him for some in-court conduct, he will not

know whether it is constitutional for his peers to sanction him

for behavior like that described in the Report. See Report at

59 (stating that Judge McBryde believed his incarceration of

a lawyer for refusal to answer a question was "appropriate

under the circumstances"); id. 63-64 (quoting transcript of

Committee hearing suggesting that Judge McBryde thought

it was appropriate under the circumstances to have a state

court judge removed from his chambers without asking the

state judge why he had come to see Judge McBryde). Given

this uncertainty, and given Judge McBryde's aggressive judi-

cial style, there is ample reason to suspect that his behavior

might again provoke sanctions.