concurring and dissenting:
I
At the outset I should say that I am able to concur in the result of this case only because it was heard in two separate and distinct parts, and amounts to two cases heard by en banc courts of different composition. The procedural aspect of the case with respect to en banc determination was heard by the judges not disqualified in reg*908ular active service, while the case on the merits of the appeal was heard by them and, in addition, Judge Bryan, a Senior Judge. Had that part of the case with respect to en banc determination been determined the way I think it should have been, then we would not have reached the merits for en banc determination would have been denied for failure of a majority.
As to the matters in the opinion of the majority with respect to en banc determination, I respectfully dissent for reasons which I will set forth below.
The fact that I concur in the grant of a new trial to Eastern does not mean that I associate myself with all of the opinion of the majority.
I concur in that part of the opinion of the majority reversing for a new trial on account of consolidation of the cases as well as the result obtained by the majority. If the subject were properly preserved, I do not disagree with the majority opinion as it adopts the reasoning of the dissenting panel opinion with respect to the conduct of the trial and especially the statements of counsel during oral argument and perhaps elsewhere. As Judge Phillips has correctly set forth in his dissenting opinion, however, there were no sufficient contemporaneous objections made to the actions of the attorneys. Neither were there sufficient, if any, contemporaneous motions for mistrial. The absence of contemporaneous objections and motions for mistrial I think precludes consideration on appeal. It simply deprives the other side of a fair trial for an attorney to sit through an inflammatory argument which could have been and should have been stopped instantly, and, then, after the argument is over, make objection to it. At the very least, such lack of action deprives the trial court of an opportunity to see that the trial is conducted in a calm and fair manner. I can think of no other aspect which more demands the enforcement of the contemporaneous objection rule and the rule requiring motions for mistrial than does argument of counsel. Not to enforce that rule simply opens the door for turning trials into shouting matches, and I would at once close it in this en banc decision. If that were the only subject at hand, I would affirm the judgment of the district court because of lack of contemporaneous objections and motions for mistrial.
II
A.
I do not subscribe to the majority’s theory that the Western Pacific Case has contributed to our uncertainty.
B.
Congress, pursuant to its constitutional power to establish inferior courts, has provided that the Courts of Appeals shall hear cases “by a court or panel of not more than three judges, unless a ... rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.” 28 U.S.C. § 46(c). After this case was decided by a panel of three judges, the appellee, Eastern Airlines, petitioned for rehearing and suggested rehearing en banc. A poll of the ten circuit judges of this circuit in regular active service yielded five votes to grant rehearing, four votes to deny rehearing, and one disqualification. Because five votes does not constitute a majority of ten, the number of circuit judges in regular active service at the time of the poll, I respectfully dissent from the court’s decision to rehear this case en banc.
In response to various problems concerning the proper role of retired judges in the affairs of the Courts of Appeal, Congress enacted a bill, proposed by the Judicial Conference of the United States, the purpose of which was to clarify the status of circuit and district judges who retired from regular active service. Act of Nov. 13, 1963, Pub.L. 88-176, 77 Stat. 331. S.Rep. No. 596, 87th Cong., 1st Sess., reprinted in 1963 U.S.Code Cong, and Ad.News, 1105, 1106. This legislation defined the composition of each of the various Courts of Appeal as consisting of the circuit judges of the circuit in regular active service, that is, those judges not retired. Pub.L. 88-176, § 1(a) *909(codified at 28 U.S.C. § 43(b)). The Act then amended 28 U.S.C. § 46(c) to put control of the en banc proceedings in the hands of “a majority of the circuit judges of the circuit who are in regular active service.” Id. at § 1(b). All the amendment did, as it affects us here, was to insert “regular” between “in” and “active” in the then existing statute.
Prior to the enactment of that amendment, the Supreme Court had discussed en banc courts in Textile Mills Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1941), and in the Western Pacific Railroad Case, 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), as well as in Shenker hereinafter mentioned. Textile Mills held that the statutes with respect to the composition of the Courts of Appeals did not prohibit a Court of Appeals of more than three judges from hearing a case en banc, and the Western Pacific case construed the predecessor of the statute involved here as simply a grant of power to order hearings and rehearings en banc and to establish the procedure governing the exercise of that power. 345 U.S. at 267, 73 S.Ct. at 666. Its holding was simply that a Court of Appeals could not restrict the initiation of the en banc procedure to the court itself, and that a decision striking out an application by a party for en banc consideration was error. In discussion the Court did construe § 46(c) as neither forbidding nor requiring each active judge of a Court of Appeals to entertain each petition for en banc consideration, which is entirely consistent with its later ruling in Shenker.
In Shenker v. Baltimore & Ohio RR Co., 374 U.S. 1, 4 — 5, 83 S.Ct. 1667,1670-1671,10 L.Ed.2d 709 (1962), the Supreme Court affirmed a decision of the Third Circuit which required an affirmative vote of an absolute majority of the active members of the court and which did not require each member of the court to vote on petitions for hearing en banc. At the time Shenker filed his petition for rehearing en banc, eight judges were in active service. Four of the eight voted to rehear the case; two voted not to rehear; and two abstained for reasons that do not appear either in the Supreme Court’s or the Court of Appeals’ opinion. See Shenker v. Baltimore & O.R. Co., 303 F.2d 596, 600 (1962). On this vote, the Third Circuit denied the petition for rehearing en banc, and the Supreme Court found no error in the denial. 374 U.S. at 4-5, 83 S.Ct. at 1670-1671. The Supreme Court also found no error in the Third Circuit’s procedure for polling its judges, which did not require a judge to vote on a petition. Id. at 5, 83 S.Ct. at 1670. The Court found such a procedure to be within the discretion of the Court of Appeals.
I do not construe Shenker to hold that a court may by rule set up the requirement of an absolute majority of the circuit judges in regular active service and then to have founded its decision upon the rule. In the first place, so far as I can ascertain, there was no rule in the Third Circuit except a near literal copying of the words of the statute.1 It was merely a practice of that circuit which was given effect by decision in the Shenker case. Thus, the decision of the Third Circuit was that an absolute majority was required, and this was affirmed by the Supreme Court. Both the holding of the Third Circuit and the Supreme Court are entirely consistent with the wording of the statute. Second, even discounting the two Shenker abstentions, the vote at the very best for the petitioner was four for and two against if we count the two abstentions as votes against granting the petition. It is at once apparent that four to two is a majority of those judges not disqualified, and so the fact situation presented to the Supreme Court in Shenker is the same as presented to us here. Since the Shenker case offered a perfect opportunity for the Supreme Court to adopt the view the majority now does, and it did not do so, I suggest that, because the adoption of the majority view here would have changed the result of the Shenker case, the Supreme Court has re*910jected the position the majority now embraces.
The Second Circuit decided a similar question in Zahn v. International Paper Co., 469 F.2d 1033, 1040 (2d Cir.1972), aff’d on other grounds, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), in a way that supports my contention that the motion for rehearing in this case failed for want of a majority. When the petition for rehearing was considered in the Second Circuit, the court consisted of nine judges. At the time, there was one vacancy.2 One judge did not vote because of disqualification. Of the seven judges who voted, four voted to rehear the case, and three voted not to rehear. Despite this four-to-three vote in favor of rehearing en banc, the Second Circuit denied the petition “for want of an affirmative vote ‘by a majority of the circuit judges of the circuit who are in regular active service.’ ” Zahn, supra at 1040, quoting 28 U.S.C. § 46(c). The Second Circuit has adhered to its literal reading of § 46(c). E. g., Boyd v. Lefrak Organization, 517 F.2d 918 (1975) (rehearing en banc denied; four affirmative votes to rehear, three negative votes, one disqualification, one vacancy).
Besides Zahn, a majority of circuits which have confronted the problem now before us have read § 469(c) as requiring an absolute majority of the circuit judges in regular active service to order a rehearing en banc. Copper and Brass Fabricators Council, Inc. v. Department of Treasury, 679 F.2d 951 (D.C.Cir.1982), reh’g denied, unpublished order, No. 81-2091 (Aug. 3, 1982) (five votes to rehear; three votes not to rehear; two judges not participating in the matter); Clark v. American Broadcasting Co, 684 F. 2d 1208, 1226 (6th Cir.1982) (rehearing denied; five votes in favor of rehearing, four against, and one judge disqualified); Curtiss-Wright Corp. v. General Elec. Co., 599 F.2d 1259 (3d Cir.1979) (rehearing denied; four votes to rehear en banc, three votes not to rehear, two judges not participating); Porter County Chapter of Izaak Walton League v. Atomic Energy Comm’n, 515 F.2d 513, 533-34 (7th Cir.1975) (rehearing denied; four votes for rehearing en banc, three votes against, one judge taking no part), rev’d on other grounds, sub nom. Northern Indiana Public Service Co. v. Porter County Chapter of Izaak Walton League, 423 U.S. 12, 96 S.Ct. 172, 46 L.Ed.2d 156 (1975). See also Internal Operating Procedures for the United States Court of Appeals for the Third Circuit, ch. IX, B.4.b. (rev. Sept. 4, 1980) (effect of non-response to a poll of circuit judges on decision whether to rehear a case en banc is the same as a vote not to rehear). Accord Maris, Hearing and Rehearing In Banc, 14 F.R.D. 91, 93 (1954) (the Third Circuit follows § 46(c) literally; hearing or rehearing en banc is ordered only with the concurrence of an absolute majority of the circuit judges in regular active service).
A minority of the circuits that have dealt with the question have authorized en banc review upon less than an absolute majority of the circuit judges in regular active service. In the Eighth Circuit, “a majority of the judges ... in regular active service who are actively participating in the affairs of the court and who are not disqualified in the particular case or controversy may order a ... rehearing en banc...." Rule 16(a) of the U.S. Court of Appeals for the Eighth Circuit (1981).
Although the Ninth Circuit apparently does not reveal the results of a poll of its members on whether to hear or rehear a case en banc, one of its members has described the circuit’s policy in a footnote to a dissent from the denial of rehearing en banc. Ford Motor Co. v. Federal Trade Comm’n, 673 F.2d 1008, 1012, n. 1 (9th Cir. 1982) (Reinhardt, J., dissenting). The Ninth Circuit rehears cases en banc only when a majority of its active members who are not disqualified vote to do so.
The First Circuit, in United States v. Martorano, 620 F.2d 912 (1980), granted rehearing en banc when the vote was two for, one against, and one vacancy. Thus, *911that court has joined neither the majority nor minority.
Strong practical considerations also support the plain reading of the majority requirement of § 46(c), and of Fed.R.App.P. 35(a), which was adopted pursuant to the statute. “The principal utility of determinations by the courts of appeals en banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions.... ” United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689-90, 80 S.Ct. 1336, 1339-1340, 4 L.Ed.2d 1491 (1960) (quoting from Maris, Hearing and Rehearing In Banc, 14 F.R.D. 91, 96 (1954). In this connection, since the very direction of the court is in the hands of itself assembled en banc, less than a majority does not hold so steady a course.
Section 46(c) allows a circuit to achieve uniformity within itself on questions of importance by acting as a full court rather than as a three-judge panel. Zahn, supra, at 1041 (Mansfield, J.). If fewer than a majority of its judges in regular active service may order en banc determination, as is now the case with us, the en banc procedure will not so surely achieve a uniform body of law, relatively immune from shifting changes in membership or disqualifications in the court. Furthermore, an important control on the invocation of the en banc process, so costly in time and resources, will be lost. Given that en banc hearing is an extraordinary measure, see F.R.A.P. 35(a), the requirement of an absolute majority of all the judges in regular active service would help limit en banc review to those cases most meriting exceptional treatment.
In 1973, the Judicial Conference of the United States approved a proposed bill to amend § 46(c) to “make clear that a majority of the judges in regular active service who are entitled to vote should be sufficient to en banc a case.” 1973 Reports of the Proceedings of the Judicial Conference of the United States 47. Although by advocating such legislation it expressed its approval of the rule that this circuit adopts today, the Judicial Conference acknowledged that Congress was the competent lawmaker in this area, and, further, that the law was to the contrary, otherwise no legislation would have been necessary. The Director of the Administrative Office of the United States Courts transmitted a draft of the proposed legislation to both houses of the 93d Congress, which in turn referred the draft to the respective Committees on the Judiciary. 119 Cong.Rec. 32,129 (House of Representatives) (Oct. 1, 1973); 119 Cong.Rec. 32,153 (Senate) (Oct. 1, 1973). The draft legislation was introduced as H.R. 10805, 93d Cong., 1st Sess., 119 Cong. Rec. 33,430 (Oct. 9, 1973), and was referred to the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, which took no action on the bill other than to request an opinion from the Department of Justice. The bill thus died in the 93d Congress.
Since 1973, two Congresses have seen fit to amend § 46(c), without addressing themselves to the specific problem posed by the Judicial Conference’s draft legislation. See The Federal Courts Improvement Act of 1982, Pub.L. 97-164, § 205, 96 Stat. 25, 53 (1982); Act of Oct. 20, 1978, Pub.L. 95-486, § 5, 92 Stat. 1629 (1978). If any inference is to be drawn from the subsequent legislative history of § 46(c), it is that Congress, the only body competent to change the statute, was aware of the construction of the statute sought to be changed by the Judicial Conference and chose not to change it.
Despite the plain language of the statute and its literal interpretation by a great majority of the circuits, the majority insists that the en banc court comprises the judges in regular active service other than those judges who are disqualified. It would so read the statute because to require an absolute majority would have the effect of treating a disqualification or an abstention as though it were a no vote. Mindful of a judge’s duty to disqualify himself whenever his impartiality might reasonably be questioned, 28 U.S.C. § 455, the majority takes the position that to treat a disqualification as a no vote would allow a judge improperly *912to affect the determination of the cause from which he is barred. At 904.
I think the majority’s concern is legitimate but misdirected.
The clear import of 28 U.S.C. § 455 is to prohibit a judge’s participation in the determination of a case within the purview of that statute. Although a disqualification may be viewed as a no vote, that effect is entirely incidental. We must assume that a judge will recuse himself whenever required to do so, and when he is disqualified, the incidental effect is always one way, namely, to leave the absolute majority requirement in effect with one less possible vote to rehear.
But the majority’s reading of the statute does not cure the mischief it assumes. Under the majority decision, five votes to rehear are needed in this case only because one judge disqualified himself. If that one judge had not disqualified himself, then six votes would have been needed to rehear the case. The result of that one judge’s disqualification was to reduce the number of votes needed to rehear the case en banc from six to five. Viewed from the other side of the case, then, that judge’s disqualification had the immediate effect, albeit unintended and incidental, of a yes vote. The disqualification made en banc review easier to obtain by one vote, and according to the majority’s logic, it is as though the disqualified judge voted yes and is affecting the outcome of the cause from which he is barred, thereby contravening 28 U.S.C. § 455.3 Thus, I suggest the majority’s reasoning, that its construction of § 46(c) avoids a conflict with § 455, is patently self defeating, and reveals the correct conclusion which is that § 455 has nothing to do with how this case should be decided.
I thus respectfully dissent to the grant of en banc review.
Judge PHILLIPS authorizes me to state that he joins in part II of this opinion.. Rules of the U.S. Court of Appeals for the Third Circuit, Aug. 19, 1948 with amendments to Oct. 1, 1951, Rules 4(3) and 5(3). Cf. the same Rules effective July 1, 1968, Rule 2(3), which again amounts only to a literal reading of the statute.
. I take it as agreed by silence among the Courts of Appeals that a vacant judgeship does not count one way or the other. The statutes speak of “judges,” not judgeships.
. In a court with an even number of judges the first, third, fifth, etc., disqualification would affect the number of votes required. In a court with an odd number of judges, the second, fourth, sixth, etc., disqualification would affect the number of votes required. Disqualification of more than one judge is not uncommon in this circuit.