with whom GOLDBERG, Circuit Judge, joins, dissenting.
With deference I disagree with the opinion of the Court as to the standard that is to be used by the Court in determining whether an affidavit for bias filed under § 144 is “sufficient.” I agree with the statement quoted in the opinion from Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975):
“Once the motion is filed under § 144, the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matters alleged. See Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Roca-Alvarez, 5 Cir., 1971, 451 F.2d 843, 847-48; United States v. Townsend, 3 Cir., 1973, 478 F.2d 1072.”
*108I cannot agree, however, that the standard of determining the “legal sufficiency of the affidavit” is one that requires that the facts be such, their truth being assumed, as would “convince a reasonable man that a bias exists.” As stated in the panel opinion of the Court, subsequently withdrawn, 5 Cir., 505 F.2d 12, I am of the view that the standard is one that merely requires that the facts be such, their truth being assumed, as would convince a reasonable man that the affiant reasonably believed that bias exists.
Of course, this Court, sitting en banc, is writing on a clean slate, and in doing so the Court, very properly, I think, considers that the standard to be applied to the decision of this issue is one that must meet the requirements of § 455. It is my opinion that the Berger case, construing the predecessor of § 144 and the new amended § 455, outlined and discussed in the majority opinion, both require that the judge against whom an affidavit for bias is lodged must determine only whether the allegations are such as would cause a reasonable person standing in the same relationship as does the affiant to believe that the challenged judge has a “bent of mind that may prevent or impede impartiality of judgment.” Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 230, 233, 65 L.Ed. 481.
If what is called the “objective” standard, that is whether a reasonable man would conclude that bias actually exists had been the standard intended by the Supreme Court in Berger the Court would not have said that the affidavit “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” It would have said rather that the affidavit “must give fair support to the existence or fact of a bent of mind, etc.” In discussing the standard in Berger, the Court referred to the language that the “affidavit shall state the facts and the reasons for the belief” of the existence of the bias or prejudice. The Court said:
“Of course the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind . ..” [Emphasis added.]
It seems clear to me that this statement means that the affidavit must reasonably support the belief of the affiant and not that it must reasonably support the actual existence of bias. This view has been expressed in the following language:
“A formulation ... in keeping with the purpose of the statute would require only that the facts alleged must justify a reasonable apprehension on the part of the affiant that the judge may be biased [footnote omitted]. This formulation shifts the emphasis from the judge’s actual state of mind to the reasonableness of the litigant’s fear, an emphasis at least supported, and possibly required, by the statutory language . . . ” [Emphasis added.]
Disqualification of Judges for Bias in the Federal Courts, 79 Harv.L.Rev. 1435, 1446-47 (1966).
The approach which I would take to the construction of this statute seems to me much more consistent with the expression of this Court in United States v. Columbia Broadcasting System, Inc., 497 F.2d 107 (5th Cir. 1974) dealing with the basic right of a party to a fair and impartial tribunal:
“The recondite niceties of contempt law coupled with the strange milieu of a judge passing on the clarity of his own orders, which had to be substantiated largely by his own legal staff, should make us particularly sensitive to the demands of justice, and more particularly, to the appearance of justice. The guarantee to the defendant of a totally fair and impartial tribunal, and the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system.” [Emphasis supplied.]
*109I would conclude that a trial court cannot be free from “any hint or appearance of bias” unless a party’s sworn belief of the existence of bias, supported by substantial facts, and tested by a standard of reasonableness, is of primary concern.
The view which I hold as to the proper interpretation of § 144 is fortified by the recent enactment by Congress of amendments to § 455. This section of the Code provides as follows:
“(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The House Report on this bill which adopted major portions of the Senate Report, No. 93-419 to accompany the Senate Bill commented expressly on the relation between this amendment and the newly adopted Code of Judicial Conduct for United States Judges.1 The Report contains the following language:
“Thus, the present situation is one where the Judicial Conference has made applicable to all federal judges the new Code of Judicial Conduct, including Canon 3C relating to disqualification of judges. The present language of § 455 of title 28 is less restrictive than the new Canon on disqualification. The bill (S. 1064) under consideration would amend section 455 by making it conform, with two exceptions, to the requirements of the canon on disqualification.”
1974 U.S. Code Congressional & Administrative News, p. 6353,
Only one of the “exceptions” referred to in the foregoing language is relevant to our discussion. This exception is the change made in the third word of the Code of Judicial Conduct. Congress saw fit to change the words “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned” to “a judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned,” thus indicating more clearly the intent of Congress that the standards be tightened up to the extent that less discretion was to be left to the particular judge.
Furthermore, the changing of the word from “should” to “shall” is explained by comments in the House Committee Report:
“The language also has the effect of removing the so-called ‘duty to sit’ which has become a gloss on the existing statute. See Edwards v. United States, 334 F.2d 360 (5th Cir. 1964). Under the interpretation set forth in the Edwards case, a judge, faced with a close question on disqualification, was urged to resolve the issue in favor of a ‘duty to sit.’ Such a concept has been criticized by legal writers and witnesses at the hearings were unanimously of the opinion that elimination of this ‘duty to sit’ would enhance public confidence in the impartiality of the judicial system.”
More importantly, however, it seems to me to be clear that both the Code and the new § 455, which now speak in the same terms, has set up a standard involving the reasonableness of the belief or fear of the litigant rather than the reasonable likelihood of the existence of actual lack of impartiality. It will be noted that the language speaks in terms of the judge’s impartiality being reasonably “questioned.” It does not speak in terms of his partiality being reasonably likely to exist. Moreover, in the Committee Report the following language makes clear, it seems to me, that we are dealing with the reasonableness of the litigant’s belief or fear of the existence of bias rather than the reasonableness of the claim that bias actually exists:
“Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a *110judge may decide a question against him into a - ‘reasonable fear’ that the judge will not be impartial.”
By clearest implication, it seems to me that this language says that the standard must be whether the litigant has a “reasonable fear” that the judge will not be impartial.
The use of the terms “objective” and “subjective” are somewhat confusing in this context. I agree that there must be an objective determination as to whether the facts and circumstances fairly support the litigant’s belief or fear that there is a lack of impartiality. To this extent it is an objective test.
Under this test, therefore, I would have no doubt but that the affidavit in this case, considered in connection with the transcript of the hearing, which is proper in that it was attached as an exhibit to the affidavit, meets the test. We must bear in mind when we consider the facts alleged that what the whole case is about was the allegations that the defendants had intentionally discriminated in the conducting of bar examinations, the only means by which black applicants could become members of the Alabama Bar. Thus, the significance of each of the several facts, and the effect of their accumulation is what we should bear in mind.
Here, we have a challenge to the judge assigned to try this case alleging discrimination on account of race in the .grading of bar examinations on the basis of the following factual setting: the lawyer for the plaintiffs and counsel for the defendants had held conversations off the record in the judge’s chambers, apparently discussing the doubts that were in the minds of plaintiffs.2 At this time no affidavit under § 144 had been filed. In effect, plaintiffs were undertaking to develop a basis for determining whether to file such an affidavit. The hearing conducted was in the form of questions and answers put to the judge by Mr. Clemon, counsel for the plaintiffs. This hearing developed the fact that the judge had been president of the Montgomery Bar Association shortly prior to being appointed to the bench and that at the time the rules of the Association forbade admission of black lawyers. When comment had been made in the public press about this fact and of Judge Varner’s being considered for appointment to the United States Court, he appointed a commission to review the bar association by-laws, but gave no direction or recommendation that the racial restrictions be changed. They were subsequently changed, at a time which the judge thought was during his term of office; but as to this he was not certain.
We are not considering here merely former membership by the judge in a club or other social organization having restricted membership. We are concerned with a challenge to a judge who shortly before his appointment had been president of the bar association of the state’s capital city, 50 years after the State Bar of Alabama had become, by law, the organized state bar. See Alabama Code Recompiled, Title 46, § 21 et seq. It is not difficult to perceive the likelihood of a non-lawyer’s confusing the status of the Montgomery Bar Association and its relationship with the State Bar of Alabama.
The additional grounds asserted in the affidavit as to the judge’s relationship to *111the defendants cannot, it seems to me, be lightly overlooked because of prior decisions of this Court that an allegation that a judge was on a friendly basis with one of the witnesses expected to testify was not sufficient. Such was the case of Simmons v. United States, 89 F.2d 591 (5th Cir. 1937). Here, Judge Varner was acquainted with ten of the thirteen defendants who were members of the Board of Bar Examiners, three only slightly and several on a basis of what he considered friendship. Three of them he did not know at all. When asked as to the effect of his acquaintance or friendship with defendants in the event of a possible conflict in testimony in the anticipated hearings, Judge Varner, indicated a strong feeling of confidence in the veracity and trustworthiness of his friends. When asked expressly with respect to Mr. Scott, who had previously been secretary of the commission, and thus the one person who had custody of all of the documents, he expressed similar confidence in his likely credibility, noting that “if [Scott] appeared to evade I think I could detect it.”3
The opinion of the Court proceeds on the theory that Judge Varner should not be faulted for answering honestly that he had a strong feeling of confidence in the veracity and trustworthiness of his friends. Of course, no one can take exception to the judge’s answers to the inquiry. The point is that if a trial judge already has sufficient contacts with litigants who are to testify before him that he is compelled to answer truthfully that he already has a belief that they will be likely to tell the truth, the solution of the problem is not for him to refuse to answer or to hedge in answering a question but to recuse himself on the ground that one of the ingredients in the making of the final judgment will be matters dehors the record, that is, those qualities of friendship which have resulted in the judge having understandably a feeling of confidence in the veracity of the witnesses who are his friends. Of course, the judge answered the question in the only way he could. The problem arises from the fact to which he testified in making his answer; that is, that the affiants entered the litigation with at least a predilection in the judge’s mind of favoring the veracity of opposing parties.
In sum, it appears to me that the combination of the facts alleged in the affidavit satisfied the requirements of § 144. Whether either one of the allegations standing alone would have been sufficient it is not necessary for me to decide. In addition to concluding, as I do, that the allegations in the affidavit were sufficient, it is more than clear that, even though the trial court should have adopted what the court now states to be the proper standard he did not even do that. He failed in two respects. In the first place, his statement quoted above clearly shows that he followed the theory of a “duty to sit,” which clearly has been now eliminated under § 455. In the second place, he merely decided the question of bias vel non rather than attempting to determine whether the affidavit was or was not sufficient by any standard.
Especially in light of the recent enactment of the amendments to § 455 it seems peculiarly inappropriate for an appellate court to take away from the trial court the opportunity to determine whether under the provisions of this newly enacted statute he should recuse himself because of his consciousness that “his impartiality might reasonably be questioned.” This is an inquiry which, it seems to me, Congress clearly meant to have the trial judge make for himself. He is best able, under standards which are entirely new since the matter was before the trial court, to weigh the allegations of fact in the affidavit in connection with the particular lawsuit then pending before him and make a determi*112nation as contemplated under § 455. It seems to me that it is not our place to substitute our judgment for that of the trial court in the making of this initial determination.
I think this is peculiarly required in this case, since the trial judge clearly indicated an inclination to recuse himself but for his idea of a “duty to sit.”4
Thus, even under the standard of inquiry announced by the Court it seems inappropriate to me for the Court to decide for the trial judge whether the affidavit was “sufficient” within the contemplated of § 144, with the gloss which is placed upon it by the amended § 455.
I would reverse the determination by the trial court overruling the affidavit and send the case back either under a determination that the affidavit was sufficient or to permit the trial court himself to determine under the standards now announced for the first time by this Court whether the affidavit met the requirements of the statute.
WISDOM, Circuit Judge(dissenting):
I am in substantial agreement with Judge Tuttle’s opinion. In particular, I would hold that, under Berger and the recent amendments to § 455, an affidavit alleging a judge’s bias is sufficient if the facts alleged justify a reasonable belief on the part of the affiant that the judge may be biased. The principle involved is older than the concern Caeser had for Calpurnia’s reputation.
I do not, however, attach the importance Judge Tuttle attaches to Judge Varner’s acquaintance with ten of the thirteen defendants, with some of whom he was on terms of friendship. Any judge who has been an active practitioner and active member of bar associations knows and is probably friendly with most of his state’s bar examiners. The plaintiff unquestionably was aware of this fact and that if it were a ground for disqualification every judge in a state could be disqualified. It is an unreasonable belief — if the plaintiff had the belief — that such a relationship between the district judge and the defendants might deprive the plaintiff of a fair trial.
. This Code of Judicial Conduct for United States Judges was adopted by the Judicial Conference of the United States in April, 1973.
. The transcript shows the following:
“Gentlemen, you may want to have a seat at counsel table. I asked my court reporter to stay here this morning because, Mr. Clemon, (counsel for plaintiffs) I thought perhaps you would like to put some elements of our conversation on the record in regard to our question of whether or not I should recuse myself. I will have to say that I decided in cases earlier this week that these courts have been very reluctant about letting judges recuse themselves and I have really changed my attitude about it in the last two or three weeks. Heretofore, I had felt that a judge should recuse himself very quickly because it made the court appear more fair, but there are other obligations that the court owes and I am afraid that I shan’t recuse myself but I want to give you an opportunity to put anything on record that you would like to put on record.” [Emphasis supplied.]
. It is of significance that none of these persons appeared to testify personally. The motion for summary judgment was based solely upon their affidavits. There, of course, were no opportunities to make any credibility choices by use of the normal standards available to a trial judge.
. See fn. 2, supra. “Heretofore, I had felt that a judge should recuse himself very quickly because it made the court appear more fair." [Emphasis added.]