(concurring in the result):
The Court has concluded that Chief Judge Garvin’s memorandum to Circuit Judge Henderson (herein referred to as the “Henderson memorandum”) subjected each of the judges of the Transatlantic Judicial Circuit, as well as the visiting judge who presided over this case, to unlawful command influence. Its conclusion differs from that reached by Colonel Mitchell, whom the Court characterizes as “the sole designee to a Judicial Commission appointed by the Judge Advocate General to investigate this matter,” who opined that Chief Judge Garvin had not violated Article 37 nor any other article of the Uniform Code of Military Justice. I find myself in agreement with Colonel Mitchell’s conclusion that no Article 37 violation was committed by Chief Judge Garvin.
This case is important, both for the personal reputations at stake and for the fundamental principles of the military justice system which it places in issue. After 21 years of active involvement with military justice, I quite naturally hold certain personal opinions about many aspects of the military justice system; as a judge, however, and especially a judge of an intermediate appellate court, I have a responsibility to the parties and others who may be affected by our decision in this case to apply the law exactly as I find it, to the best of my ability. Through extrapolation of a dictum in the 2-1 decision in United States v. Ledbetter, 2 M.J. 37 (C.M.A.1976), to the virtual exclusion of the traditional lines of decisional and statutory law by which Chief Judge Garvin was expected to conduct himself and is now entitled to have his conduct judged, the Court reaches its conclusions without dealing with what, for me at least, are the hard questions in the case and, thus, leaves the Chief Judge of the U.S. Navy-Marine Corps Trial Judiciary with a rebuke but little practical guidance as to what his supervisory responsibilities are or how he may permissibly exercise them. Moreover, by failing to distinguish adequately between, on the one hand, judicial misconduct or incompetence, and, on the other, gradations of judicial performance not amounting to either misconduct or incompetence, the Court neglects altogether the implications for judicial independence of routine judicial performance evaluation. In so doing, it leaves open a “back channel” which substantially nullifies the effectiveness of its own decision as a means of enhancing judicial independence, and its decision could actually worsen the predicament of the trial judiciary. Accordingly, I feel obliged, if not to solve all these problems, at least to address them, so that they may be squarely presented for authoritative resolution when the matter is again before the U.S. Court of Military Appeals.
First, let me say that I am in complete agreement with all the findings reached by the Court except numbers 16 and 19, and number 26 insofar as it assumes the existence of unlawful command influence, but the significance of two of those findings is open to interpretation.
Number 13: Anyone who has served in a supervisory position and has witnessed performance by a subordinate considered less than fully satisfactory understands that there is sometimes a reluctance to confront the subordinate with the deficiency immediately. In part this may be due to a desire to avoid an unpleasant or disruptive situation, or to a hope that the deficiency will remedy itself, or to a decision simply to tolerate it if it is not causing major problems, especially if it exists in a sensitive area. Once the deficiency does begin to cause problems, however, the supervisor may decide that remedial action is necessary. In concurring in the Court’s finding number 13,1 reject any implication, if there is one, that Chief Judge Garvin was merely acting as a conduit for the views of Commander, U.S, Naval Activities, United Kingdom (COMNAVACTSUK), or the endorser, Commander in Chief, U.S. Naval Forces, Europe (CINCUSNAVEUR). On the contrary, as I view it, the COMNA-VACTSUK letter, with CINCUSNAVEUR endorsement, was for Chief Judge Garvin the last straw, so to speak, which not only confirmed his own judgment, derived from his review of case reports and other infor*1269mation reaching him from time to time, as to the existence of a deficiency, but also convinced him that it was now causing real problems, and that his supervisory responsibilities no longer allowed him to tolerate it in silence.
Number 14: The standard instruction delivered to members before sending them out to deliberate on a sentence directs them to consider “the ends of good order and discipline in the service, the needs of this accused, and the welfare of society,” or words to that effect. There can be no doubt that one of the purposes of military law is “to assist in maintaining good order and discipline in the armed forces,” Part I, Preamble, Manual for Courts-Martial, United States, 1984. That is only one of the functions of a proper court-martial sentence; hence, a severe sentence may better assist in maintaining good order and discipline than a lenient sentence, yet not be a proper sentence, because it neglects other interests to be promoted by sentencing. Conversely, an excessively lenient sentence may neglect good order and discipline and thereby be an improper sentence. If a memorandum is written to a military judge who regularly adjudges excessively lenient sentences informing him that his excessively lenient sentences are failing to perform one of the recognized functions of sentencing, a mediate purpose of the memorandum can be said to be to encourage the judge to increase the severity of his sentences; the ultimate purpose, however, is to achieve a balancing of interests that will produce proper sentences. In concurring in the Court’s finding of fact number 14, I do so with the understanding that Chief Judge Garvin’s ultimate purpose was to encourage the judges of the Transatlantic Judicial Circuit to adjudge properly balanced sentences, which, in Chief Judge Garvin’s view, was not happening and could be achieved only by their increasing the severity of their sentences, not necessarily in any particular cases, but on average.
This Court’s conclusion that the judges of the Transatlantic Judicial Circuit were subjected to unlawful command influence is evidently based on that portion of Article 37(a) which reads:
No person subject to this chapter may ..., by any unauthorized means, influence the actions of a court-martial ... or any member thereof, in reaching the findings or sentence in any case____
Presumably, the words “No person subject to this chapter” mean exactly what they say, but the phrases “by any unauthorized means” and “in any case” have been the subjects of some interpretation.
No one in the armed forces is so independent as to be free of accountability to military authority. For judge advocates, including military judges, the most exquisite degree of independence bestowed by the Congress comes from being directly accountable to the Judge Advocate General or his designee, and such assignment is generally viewed as the ultimate protection against command influence. In the Senate Report No. 1601, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, 4501, accompanying the Military Justice Act of 1968, P.L. 90-632, the following explanation is provided for the proposed amendment to Article 26:
The intent is to provide for the establishment within each service of an independent judiciary composed of military judges certified for duty on general courts-martial, who are assigned directly to the Judge Advocate General of the service and are responsible only to him or his designees for direction and fitness ratings. [Emphasis supplied.] [1968] U.S.Code Cong, and Ad.News 4507-08.
Interpreting the foregoing language as it appears in Article 26, the U.S. Court of Military Appeals in United States v. Moorehead, 20 U.S.C.M.A. 574, 44 C.M.R. 4 (1971), wrote:
We infer that the “assigned and directly responsible to” language was intended to subject officers functioning as military judges of general courts-martial to the control of legal officers instead of line commanders.
Similarly, when the Secretary of Defense sought to assure the independence of de*1270fense counsel, he issued the so-called Laird Memorandum, dated 11 January 1973, which stated in part:
The Military Departments are directed to submit plans to revise the structure of the Judge Advocate organizations to place defense counsel under the authority of the Judge Advocate General, and in the case of the Marine Corps, under the Director, Judge Advocate Division.
Direct accountability to the Judge Advocate General is deemed the cornerstone of judicial independence in the armed forces, and, under Article 66, it applies to this Court, as well. Thus, notwithstanding its reference to an independent judicial commission in Ledbetter, the U.S. Court of Military Appeals was quite content, apart from its judicial responsibilities in deciding the ease before it, to allow the Judge Advocate General of the Navy to police his own Court of Military Review, provided that he intended to do so, with respect to misconduct alleged in connection with the proceedings in the latter Court. See United States v. Rojas, 17 M.J. 154 (C.M.A.1984). Per contra, in United States Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (C.M.A.1988), in appointing Judge Cox as its own Special Master, the U.S. Court of Military Appeals inserted the pointed footnote 14:
So far as we are informed, the Judge Advocate General of the Navy has not initiated any investigation of the allegations of judicial misconduct; and it has not been suggested that he intends or has been requested to do so. If such an investigation had been undertaken, a different remedy might have been feasible. Cf. R.C.M. 109(a), Manual for Courts-Martial, United States, 1984.
The foregoing citations leave no room for doubt that, although the U.S. Court of Military Appeals may possess certain inherent residual powers with respect to the military justice system ancillary to its explicit statutory jurisdiction, the Judge Advocate General and his designees have the power of “direction and fitness ratings” (Article 26) and “control” (Moorehead) over members of the Trial Judiciary, subject, of course, to Article 37(a).
Considering the Judge Advocate General’s responsibilities under Articles 6 and 2and the Chief Judge’s responsibilities as the JAG designee, I am convinced that the concern expressed by Chief Judge Garvin for “the perception of the judge’s role in military justice, in general, and more specifically the perceptions dominant in the community concerning the judiciary” was a legitimate concern. Moreover, if there, indeed, was “a growing perception ... that the judiciary may be leaning toward a definite defense orientation vice a fair and impartial tribunal which takes into account the needs of all parties in interest,” I am, likewise, convinced that the Judge Advocate General had a responsibility, exercisable through the Chief Judge as his designee, to determine the cause of such perception and to correct the perception, if the perception was erroneous, or to fix what was causing it, if the perception was correct.
Whether the Chief Judge is redesignated for this purpose a one-person “independent judicial commission” or remains the JAG designee under Article 26 is not, for me at least, particularly significant. Presumably, “independent” in this context means independent of the line, not independent of the Judge Advocate General, since even an independent judicial commission would have no independent authority of its own but would report to the Judge Advocate General, who has the authority to approve or disapprove its findings and implement or not implement its recommendations as he thinks best. If this is so, then, pursuant to the rationale of Moorehead, the JAG designee under Article 26 would have all the independence he needs. The practical difference would be that, if acting as the JAG designee, the Chief Judge would not be limited to reporting to the Judge Advocate General but would also have the power to take whatever remedial measures were within the proper scope of his designation.
It is a fact of bureaucratic life that, if the causes of a military justice problem are sought from everywhere but the judiciary, *1271the problem, if there is one, will usually end up being attributed to the judiciary’s fault, whether or not it is so in actuality. Consequently, if I were the trial judge concerned, I should much prefer having the Chief Judge seek an explanation from me directly, with which to defend the judiciary’s position, to having him get his information from third parties whose interests might be served by blaming the judiciary for their own delicts. Had the callers to Judge Paul in Ledbetter merely asked for information about the trial instead of accusatorily demanding the judge’s rationale and suggesting that he must have done something wrong to have aroused the convening authority’s displeasure, Judge Paul’s reaction might have been quite different. How such an informal inquiry would square with the ABA Standards is debatable, but I should think that the last thing a military judge would want, even if the Department of Defense were disposed to fund such an evolution, would be to be descended upon by an independent judicial commission composed of lay citizens, lawyers, and judges every time a question arose about one of his cases. There is, in my view, a world of difference between an allegation of misconduct or incompetence, on the one hand, and a question regarding performance, on the other. An independent judicial commission may or may not be the necessary and appropriate entity to investigate the former, but it seems to me that normal supervisory channels should be allowed to deal with the latter in a routine fashion pursuant to the “direction and fitness ratings” authority of Article 26. If not, what did the Congress intend such authority to be for?
If any adverse actions are taken against, or critical communications made to, a judge by the Judge Advocate General or his designee solely or even principally on the basis of complaints from or perceptions of convening authorities or other commanders, or their staffs for them, the conduit situation condemned in Ledbetter would apparently exist. This does not, and in my view should not, mean that a conduit situation necessarily arises whenever the complaint of a convening authority serves to prompt or in some way to figure in a non-accusatorial, performance-related inquiry by the Judge Advocate General or his designee. Obviously, if one of the questions is whether or not a certain perception exists, a complaint may be circumstantial evidence of such perception, although by itself it proves nothing about the validity of either the complaint or the perception. As I interpret the evidence in this case, Chief Judge Garvin examined case reports as they were received and, over time, formed cumulative impressions of the various judges on the basis of those reports. Those impressions may not have been verified with arithmetical precision, nor were records of trial examined to ensure rigorous validity in all comparisons; and the impressions may have been confirmed by various communications of dissatisfaction with the performance of the Transatlantic Judicial Circuit, including the COMNAVACTSUK letter. Even so, while the lack of precision and rigor may be deemed to have affected the quality of the Chief Judge’s evaluative process, I fail to see how either the lack of precision and rigor, or the confirmation of impressions by outside complaints, transformed the essential nature of the process from an independent evaluation to a conduit for command influence.
As noted above, Article 26 makes all military judges responsible to the Judge Advocate General or his designee for “direction and fitness ratings.” In this respect, a comparison with Article 37(b) is interesting. Article 37(b) provides:
In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such person as a member of a court-martial, or (2) give a less favor*1272able rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial.
Subsection (b) of Article 37 was added by the same Military Justice Act of 1968 that created the “independent field judiciary” for general courts-martial and the not-so-independent military judges for special courts-martial. Conspicuously absent from among those afforded fitness report protection by Article 37(b) are the military judges of either general or special courts-martial. Since it would be absurd to exempt military judges from being evaluated on their performance of their primary duty, the Congress provided an alternate form of protection: that only the Judge Advocate General or his designee would be the one to provide them “direction and fitness ratings.”
Although a discussion of fitness reports may seem tangential to this case, I regard it as central to an adequate treatment of the issue for two reasons.
First, a fitness report (except one given upon detachment) operates both retrospectively and prospectively. Insofar as the ratee is concerned about improving his rating, he will take any express or implied criticism in the report as an indication of changes to be made. Consequently, if Chief Judge Garvin had simply waited a few weeks, he might have issued a fitness report to Circuit Judge Henderson which contained grades of “B” or “C” in “Judgment” and “Navy Organizational Support,” backed by a narrative stating that Judge Henderson’s sentences across the board were so consistently below Trial Judiciary norms as to have created in his Circuit the growing perception that the judiciary may be leaning toward a definite defense orientation vice a fair and impartial tribunal, etc. Given the knowledgeability of experienced judges on the subject of sentencing, as described in United States v. Ballard, 20 M.J. 282 (C.M.A.1985), and the explicit authority over fitness ratings conferred by Article 26, I suggest that such a fitness report, unless the statements therein could be objectively refuted, would be immune from attack under Article 37, cf. United States v. Pack, 9 M.J. 752 (NCMR 1980), or otherwise. To condemn a memorandum as command influence, while sanctioning a fitness report to and with the same effect, would merely elevate form over substance and would, thus, contribute little or nothing to judicial independence.
Second, it is firmly established by military custom and tradition that it would be inexcusable behavior on the part of a reporting senior to fail to counsel a ratee on deficiencies of which the reporting senior was well aware before issuing a derogatory fitness report. Thus, Article 26 mentions responsibility not only for fitness ratings but also for “direction.” Obviously, Article 37 must be deemed to place limitations on the “direction” that can be given, lest each trial judge become nothing more than an extension of the Judge Advocate General or his designee; at the same time, however, in light of the statutory scheme enacted by the Congress and past interpretations of Article 37 by the courts, I simply cannot find any legal basis for holding that a memorandum from the JAG designee informing a judge of the facts that his sentences are consistently below Trial Judiciary norms, that complaints have been received, and that the perception of a pro-defense orientation has arisen in his judicial circuit, combined with a request to reexamine his sentencing philosophy, constitutes an “unauthorized means.”
In addition to the requirement of Article 37 that the attempt to influence be “by any unauthorized means,” there is the requirement that the attempt be to influence the findings or sentence “in any case.” Several decisions relating to instructional lectures to members have given meaning to this language.
In United States v. Danzine, 12 U.S.C. M.A. 350, 30 C.M.R. 350 (1961), the court wrote as follows:
Having concluded the lectures did not inject improper command influence into the picture, we could end our discussion here. But in view of the defense complaints about the timing of the remarks, we deem it appropriate to say a word *1273about that subject. The lectures were not singularly significant as to accused’s case, and were given a full month before he was tried. Indeed, neither the instant proceeding nor any other had even been referred to trial when the remarks were disseminated to the newly appointed court-martial. As a matter of fact, at the time of the lectures, there was no way for anyone to know just when accused might be tried.
In United States v. Isbell, 3 U.S.C.M.A. 782, 14 C.M.R. 200 (1954), the court had before it a claim that the court which tried the accused had been exposed to a communication from higher authority entitled “Retention of Thieves in the Army” which denounced the results of recent general court-martial cases in which, although the accused were “properly” convicted of stealing substantial sums of money, they were given sentences which “improperly” retained them in the Army. The communication went on to say that court-martial members should be very carefully chosen, and that, when the individual members had verified by their performance that they had the necessary qualities, that fact should be recognized in their efficiency reports. In distinguishing United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43 (1953), in which reading of the identical communication had led to reversal, the court in Isbell wrote:
In the Littrice case, supra, the convening authority appeared before a court-martial convened for the trial of an accused charged with larceny. Immediately before trial began, he read them several instructions, including the letter designated in this case as Defense Exhibit B. As an abstract proposition, and when used solely as a precept to subordinate commanders, the letter was not objectionable, but we condemned its use in that case. There we held that when read to the members of a court-martial immediately before trial, and in connection with instructions upon retaining thieves in the Army, the reference to efficiency reports amounted to a veiled threat.
The circumstances of the instant case are entirely different. Here the letter was disseminated to the command as a part of a general program of indoctrination and instruction. When this document was distributed, the offenses of which the accused was convicted had not been committed, nor had the court-martial before which he was tried been appointed.
Similarly, in United States v. Ferguson, 5 U.S.C.M.A. 68, 17 C.M.R. 68 (1954) it was mentioned as being significant to a finding of unlawful command influence that the accused’s trial took place on the day immediately following the offending communication to a group including the members. See also United States v. Wright, 17 U.S. C.M.A. 110, 37 C.M.R. 374 (1967).
On the basis of the analysis set forth above, such as it is, I conclude that Chief Judge Garvin did not violate Article 37, both because his memorandum was not an “unauthorized means,” and because it was not an attempt to influence the findings or sentence “in any case.”
This is not to say that one could not parse the memorandum and find matters that were better left out. Probably, the reference to the tempo of activity in the Mediterranean as an aggravating circumstance should not be considered except where specific evidence of it has been properly admitted, perhaps as victim impact evidence, in a particular case. Cf. Ferguson; see also United States v. Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (1959). Similarly, the number of discharges adjudged in a month and generalizations about sentences in particular cases prove little, if anything, and can be misleading. Finally, any suggestion of a relationship, from a judicial standpoint, between the cost of a trial and the severity of the sentence obviously cannot be taken literally. I do not believe, however, that the memorandum was intended to be, nor that it should be, read in such a minute manner. Clearly, the Chief Judge sought to avoid the appearance of a formal censure by omitting the kind of detail that would normally be found in a formal censure. Unfortunately, the *1274majority have implicitly concluded from the lack of detail in the memorandum, in conjunction with the Chief Judge’s puzzling responses regarding the Derring case report and the COMNAVACTSUK letter, that the “Henderson memorandum” was a mere conduit for the displeasure of COMNAVACTSUK and CINCUSNAVEUR. With that implicit conclusion I cannot agree.
The U.S. Court of Military Appeals has made repeated references to what it calls “the necessity of maintaining a delicate balance between justice and discipline” (Littrice) which has confronted the Congress over the years. See also United States v. Davis, 12 U.S.C.M.A. 576, 31 C.M.R. 162 (1961). The establishment of a military trial judiciary was a significant step in reducing the opportunity for command influence, United States v. Butler, 14 M.J. 72 (C.M.A.1982), and, as succinctly stated in Ledbetter, “Article 26(c)’s provision for an independent trial judiciary responsible only to the Judge Advocate General certainly was not designed merely to structure a more complicated conduit for command influence.”
The Congress, nevertheless, apparently has also recognized the extraordinary influence that a military judge may exert over discipline throughout an extensive area. Especially overseas, a single military judge may cover a circuit encompassing millions of square kilometers and thousands of military personnel. If, for example, that individual judge was unwilling to accept the accuracy of urinalysis, regardless of the evidence, he could singlehandedly eviscerate the armed forces’ entire multimillion-dollar drug-suppression program within his circuit and thereby contribute to the proliferation of drug abuse in scores of activities. Similarly, if that judge sincerely believed that, in all but the most egregious cases, punishment beyond the level of Article 15 was unwarranted, he could virtually nullify the court-martial process as a means of maintaining good order and discipline in his circuit. Obviously, such judicial performance could not long be tolerated.
Consequently, in an effort to maintain the “delicate balance,” the Congress has placed the military judiciaries under the supervision and control of the respective Judge Advocates General, senior military officers with many responsibilities akin to those of attorneys-general and complex and subtle relationships to the line components of their services. See, e.g., United States v. Grow, 3 U.S.C.M.A. 77, 11 C.M.R. 77 (1953) (Part II); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967) (Part II). See also Chief of Naval Operations Instruction 5430.48C, dated 2 September 1988, re Special Assistant for Legal Services OP-09J. In addition, in the more than thirteen years since the suggestion in Ledbetter of tenure for judges in the military judiciaries, the position of the judges vis-a-vis tenure remains unchanged. Consequently, as was conceded at oral argument, a Judge Advocate General may legally relieve a military judge with whose sentences he is displeased altogether, both to eliminate the offending individual from the judiciary and, as has been said, pour encourager les autres. (On the present record, it would be impermissible to cite a specific instance, but suffice it to say that it would also be a mistake to assume that such a thing has never happened.) And members of the military judiciaries receive their fitness reports on the same forms, and are marked in the same applicable categories, as other military officers.
In United States v. Navarre, 5 U.S.C. M.A. 32, 17 C.M.R. 32 (1954) the commanding officer of the members, a colonel, had held a “court-martial school” for prospective members, in which he related an anecdote about a lieutenant colonel who had received a low efficiency report for failing as a member of a court-martial to exercise the good judgment expected of an officer of the Army. After noting that each member of the court-martial had responded on voir dire that he would not be influenced by the Colonel’s anecdote, Judge Brosman, in dissent, summarized the evils of any reference to efficiency reports as follows:
The difficulty with this is, however, that the Colonel’s not unpurposeful anecdote may well have served to start the *1275minds of court members running in a reprehended channel — that is, they may have begun to think of their commanding officer’s views and the results he desired. Also they could well have thought of their personal fates as being bound up in some measure with the outcome of specific litigation.
With this in mind, it is interesting to contemplate the U.S. Navy-Marine Corps Trial Judiciary in the post-Mabe environment. As a result of the U.S. Court of Military Appeals’ remand and this Court’s majority opinion, virtually all members of the U.S. Navy-Marine Corps Trial Judiciary will have read not only the “Henderson memorandum” but also the Chief Judge’s 6 July 1988 and 1 August 1988 memoranda and, through them, will be well-acquainted with their Chief Judge’s views on sentencing. Although certain prophylactic pronouncements were made in the aftermath of Circuit Judge Henderson’s disclosure to preserve cases in the event that the memorandum was ultimately ruled to constitute command influence, the actions taken included soliciting Chief Judge Garvin’s input for Circuit Judge Henderson’s fitness report and extending Chief Judge Garvin for an additional year in his present position. Moreover, whereas, in the past, nearly all circuit judges had already attained the grade of 0-6, many now are, or shortly will be, 0-5’s competitive for 0-6 in a highly selective environment, who understand perfectly that, with respect to their own fitness reports, the least adjustment in the rankings or slightest nuance in a narrative could make the difference between selection and passover.
Obviously, some tension is going to exist between judicial independence and the fitness report system, which requires a single individual to evaluate trial judges on their judgment, imagination, analytical ability, and Navy organizational support. Whether the reporting senior is a line officer or a legal officer, I am certainly not unmindful of the human tendency to rate the performance of others on the basis of how closely what the ratees did matched what the reporting senior would have done in like circumstances, nor am I insensitive to the danger that such a rating system poses to judicial independence. There is, however, no indication that Chief Judge Garvin has employed, or intends to employ, any such system, and, in placing military judges under the Judge Advocate General or his designee for fitness ratings, the Congress must have expected that judge advocates, in particular, would understand the inappropriateness of such a standard as applied to the judiciary.
At the same time, where a judge’s decisions fall outside what the reporting senior considers a reasonable range, the reporting senior’s obligation to evaluate the ratee’s “judgment” and “analytical ability” implies, to me at least, that the reporting senior is supposed to have sufficient access to the ratee to enable him to examine the ratee’s decision-making processes. Moreover, it is in the ratee’s career interest to maintain the kind of relationship with his reporting senior in which a non-accusatorial inquiry into the basis of a decision would be deemed, not an investigation of suspected misconduct or incompetence nor a threat to judicial independence, but an honorable means whereby the reporting senior can obtain the information he requires to perform his rating and other supervisory duties properly, and whereby the ratee is afforded input into his own evaluation. For precisely this reason, when I was a Circuit Judge, I would frequently and of my own volition annotate my case reports with a brief explanation of any unusual circumstances or evidence so as to anticipate any legitimate questions that might arise in the mind of the Chief Judge. I am greatly concerned that the majority’s remedy, based on their reading of Ledbetter, albeit supremely well-intentioned, would so stanch the dialogue between the Chief Judge and his far-flung Circuit Judges as to render a meaningful and accurate evaluation of their judicial performance impracticable. If that ever happened, the continuing bureaucratic requirement for fitness reports would necessitate the development of a radically different rating system based, not on the quality of judicial deci*1276sion-making, but on whatever marginally significant objective criteria might be readily compatible with data retrievable from a computerized “management information system,” such as the number of discharges and months of confinement awarded during the reporting period, or the current favorite for non-judiciary activities: processing times. Moreover, unsubstantiated criticisms from the judges’ detractors, such as the “grumblings from the Med,” would continue to reach and possibly prejudice the reporting senior, while the targets of the criticisms would be cut off from any opportunity to defend themselves, unless such criticisms rose to the level of official complaints of misconduct or incompetence, which they rarely, if ever, would. Any such developments would have severe implications for the continued ability of the trial judiciary to attract the best and the brightest and, in my opinion, would be inconsistent with the Congressional design.
From the language of Article 26, it is apparent that the Congress well understood the interrelationship between “direction” and “fitness ratings,” and that it contemplated a judicial performance evaluation system such as that presently in use. The majority’s opinion addresses “direction” alone. While, in many situations, a partial solution is better than no solution at all, in the area of judicial independence, the status quo is, in my opinion, preferable to the incompatibilities, not to mention the complacency, that would result from a less than comprehensive restructuring.
Because I have concluded that there was no unlawful command influence in this case, and that, even if there was, it in no way prejudiced this appellant, I join the majority in voting to affirm.