McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States

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 MeBryde’s statutory claims. I do not agree, however, that the Act precludes us from reviewing 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 Council’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 adequately 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 imprecise 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 prevented 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 correspondence 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 *70and 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 conclusion 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] contentions 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 decision, Chief Judge Politz referred two complaints of misconduct 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 Committee 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 Special Committee “decided to broaden its investigation” to encompass 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.

*71Based 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 obviously abusive and serious incidents, see, e.g., Maj. Op. at 67-68, 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 disclosed certain financial schedules, accused the prosecutor of adopting “a sort of cat-and-mouse approach to discovery.” Report 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’ meeting), Judge McBryde called two fellow judges “despicable.” Id. at 103-04. Similar incidents appear throughout the Report: 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 attempted to proceed with the case “[rjather 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 between 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 apparently more abusive, might nonetheless be entirely appropriate under certain circumstances. For example, the Report recounts several instances in which Judge McBryde accused attorneys of bad faith, sometimes sanctioning them and sometimes 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^] with respect to ... every uncontested 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. Quoting 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 combination 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 *72changed 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 testified on the Judge’s behalf stated that he “prepares thoroughly, addresses motions promptly, ... writes scholarly opinions on difficult legal questions,” and moves cases through his docket expeditiously. Report at 123-24. Although acknowledging 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 patterns 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 54-55. The recommended reprimand 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 unwarranted 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 “preventing lawyers and parties from conducting judicial proceedings in a manner consistent with the norms and aspirations of our system” and “harmfing] the reputation of the court.” Report at 154.

Invoking section 372(c)(6) of the Act, the Council imposed the three recommended sanctions. Six of the nineteen Council 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 II. 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 *73procedural 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 prevents us from reaching Judge McBryde’s as-applied constitutional 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 59. 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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “The maxim that congressional preclusion of judicial review must be ‘clear and convincing’ applies in a particularly rigorous fashion ... when constitutional claims are at stake.” Id. at 494. As we said in Ungar v. Smith, “[wjhen ... [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 clearest 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, 108 S.Ct. 2047, 100 L.Ed.2d 632 (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, 106 S.Ct. 2133, 90 L.Ed.2d 623 (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 constitutional challenges. See Maj. Op. at 59-60. Indeed, Congress knows how to preclude review of constitutional claims when it wants to. For example, the federal statute governing deportation and denaturalization provides that “judicial 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. § 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 Un-gar 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 *74purposes, 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. § 372(c)(10).

As my colleagues also note, see Maj. Op. at 59-60, 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 constitutional claims.” Griffith, 842 F.2d at 494. Here, as in Ralpho, Ungar, and Griffith, the legislative history includes no direct comment at all about whether the Act’s review preclusion language was meant to cover constitutional challenges. See Maj. Op. at 59-60 (“Of course if the [Griffith} trilogy is read to require magic words expressly barring as applied constitutional 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 59-63. 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 Relations 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 proposal for expansive judicial review and generally adopting the Senate’s more restrictive approach, dropped “without explanation” the exception for constitutional questions. Id. Nevertheless, observing that circuit precedent required an “affirmative 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 Department 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 versions 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 spon*75sors, 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. Reo. 30,050 (1979) (statement of Sen. DeConcini). Senator DeConeini’s bill provided for review 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) (“[Rjather than creating] luxurious mechanisms such as special courts and commissions — with all the trappings of the adversary process, including legal counsel, 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 returned to the Senate, Senator DeConcini made the same point, explaining to his colleagues that the Judicial Conference, 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, 90 S.Ct. 1648, 26 L.Ed.2d 100 (“[T]he Judicial Council was intended to be ... an administrative body i'unctioning 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 vesting 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 constitutional 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 insufficient 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 Congress did not intend to preclude review of as-applied constitutional challenges.

My colleagues’ observation about “substantial redundancy” between review performed by the Judicial Conference and Article III courts, see Maj. Op. at 62-63, 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 Supreme 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 Ju*76diciary Committee 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 constitutional claims would serve the statutory purpose of “prevent[ing] undue prolongation of the disciplinary process.” Maj. Op. at 62-63. 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”).

Ill

Having found no “clear and convincing” evidence that Congress intended to preclude review of as-applied constitutional 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 64-68, 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 performance and disrupting his judicial activities. They then punished 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?” Appellant’s Opening Br. at 2. Answering this question, Judge McBryde argues that “the Constitution does not allow agencies 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 unconstitutional to suspend assignment of new cases for up to one year for [the Judge] to reflect and to change his conduct.” Appellees’ 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 65. 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, 90 S.Ct. 1648 (“Many courts — including federal courts— have informal, unpublished rules.... These are reasonable, proper, and necessary rules, and the need for enforcement *77cannot reasonably be doubted. [I]f one judge in any system refuses to abide by such reasonable procedures, it can hardly be that the extraordinary 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 influences not only by other branches but by colleagues as well, and thus promotes judicial individualism.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 n. 10, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Similarly, in Chandler, a case involving intrajudicial discipline, the Supreme Court stated that “[tjhere 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, 90 S.Ct. 1648. See also In re Certain Complaints Under Investigation hy 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 independence ... ‘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 tolerances”).

The notion that individual judges enjoy a sphere of protected 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 principle 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 apprehension 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. (13 Wall.) 335, 347, 20 L.Ed. 646 (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 jurisdiction.... 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, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Cf. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) (“Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of *78the 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, 90 S.Ct. 1648 — 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 oto affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (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, 75 S.Ct. 11, 99 L.Ed. 11 (1954)).

A judge’s authority to control the courtroom is essential to the exercise of judicial power. Unlike legislative and executive 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 authenticity. 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 accordance 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 example, can undermine a trial’s fairness. See, e.g., Offutt, 348 U.S. at 17, 75 S.Ct. 11 (explaining that trial judge’s becoming personally embroiled with defense counsel compromised the court’s “atmosphere of austerity” that is “consonant with a fair trial”); Donato, 99 F.3d at 430-31 (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’ interests. See In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962) (“While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom ... it is also essential to *79a 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 integrity in the eyes of the public. Cf. In re Certain Complaints, 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 indispensable parts of our system of justice.” McConnell, 370 U.S. at 236, 82 S.Ct. 1288 (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 interfere with the “effective and expeditious administration of the business of the courts.” 28 U.S.C. § 372(c)(1). After all, Congress has authority to “limitf]” courts’ inherent powers — including their power to manage trials — “by statute and rule, for these courts were created by act of Congress.” Chambers, 501 U.S. at 47 (internal quotation marks omitted); see, e.g., McConnell, 370 U.S. at 233-34, 82 S.Ct. 1288 (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 authorize Judicial Councils to infringe — upon judges’ trial. management 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., Plant v. Spendthrift Farm, 514 U.S. 211, 240, 115 S.Ct. 1447, 131 L.Ed.2d 328 (holding that Congress may not pass legislation that reopens final judgments of federal courts). Having vested authority to conduct trials in individual 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 byway, 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 defendants 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, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (noting that “separation-of-powers concerns ... would arise” if Congress’s power to provide for interbranch appointments of inferior officers “had the potential to impair the constitutional functions assigned to one of the branches”); Mistretta v. United States, 488 U.S. 361, 404, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (stating that the “ultimate inquiry” whether executive appointment of Article III judges to administrative posts violated separation of powers principles turned on *80whether the “particular extrajudicial assignment undermines the integrity of the Judicial Branch”).

Thus, while I agree that in order to discourage the improper 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 legitimate and necessary uses of that power, such sanctions should be employed only for conduct that, viewed from the perspective of reasonable judges and lawyers, is clearly abusive toward counsel or clearly prejudicial to the adversarial process.

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 nonabusive judicial behavior. Federal judges are not all alike: there are as many appropriate courtroom management techniques 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. Allowing 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 aggressive 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 abusive. A rigorous standard that restricts sanctions to instances of clearly abusive behavior will reduce the likelihood that councils will sanction appropriate behavior out of inexperience. 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 Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (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 performance, 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 reluctant 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, entirely 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.

*81The 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 objective standard, asking not just what complaining lawyers felt, but also how the judge’s conduct would have affected reasonable 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 lawyers, 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 reputation. In Shepherd v. ABC, we held that courts cannot impose discovery sanctions based on attorney misconduct without clear and convincing evidence of the predicate wrongdoing. 62 F.3d 1469, 1476-78 (D.C.Cir.1995); see also Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (U.S.1979) (stating that repu-tational interests “are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiffs 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 temperament 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 67-68, 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 privilege); 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 *82restricted 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 appropriate.

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 conduct — ranging from the “cat-and-mouse” comment to accusations 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 acknowledges 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 understand 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 Judicial Conduct and Disability Act: Will Judges Judge Judges ?, 37 Emo-RY 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 Committee’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 judicial 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 explanation 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 Report — those involving conduct that, although more clearly bordering on the abusive, might nonetheless be entirely appropriate under some circumstances, see supra at 71 — I think the Committee similarly failed to explain adequately what made Judge McBryde’s conduct clearly abusive, and thus sanctiona-ble. 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 incidents, 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 aceus[ed] them of lying or conspiring to deceive 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 *83Judge 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 Committee gives little or no weight to how things would have looked to an objectively reasonable judge in Judge McBryde’s position. 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 rales “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 rales 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 contempt and sarcasm to enforce his rales,” 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 manner,” 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 rales” 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 guidance 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.

*84The 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 aggressive 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 exercises 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 reasonable 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 attempted 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 thorough, however, the Committee included in its Report many actions and incidents which either seem to be entirely appropriate 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. *85Because of the fundamental importance of judicial independence and the risk that sanctions could punish or chill legitimate 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 appropriateness 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 disagreement 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 remain published on the Fifth’s Circuit’s web site, see http://www.ca5.uscourts.gov/mcbryde/coun-cil.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 repetition yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (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 68, 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 judicial style, there is ample reason to suspect that his behavior might again provoke sanctions.