Late last Friday, a special panel of the Judicial Conference of the United States--a group of judges who oversee the business of the nation's federal courts--issued a decision upholding the sanctions that yet another panel of judges had previously entered against Judge McBryde. That panel, an administrative committee of the Fifth Circuit Court of Appeals in New Orleans, had previously punished the judge for his intemperate conduct from his Fort Worth bench, though the most serious part of that punishment had been suspended pending the appeal to the Judicial Conference.
The decision of the Judicial Conference brings to a close the administrative portion of McBryde's historic feud with his brethren of the Fifth Circuit. As the Dallas Observer reported in a cover story last fall ("Temper, Temper," Oct. 2), the ongoing feud originated in a series of incidents between Judge McBryde and his judicial nemesis, Jerry Buchmeyer, chief judge of the Northern District of Texas, the federal district in which both judges sit. Things went nuclear between them in the spring of 1995, when, acting on complaints from court personnel and the U.S. Attorney's office, Judge Buchmeyer removed McBryde from two cases that had been assigned to McBryde's court. A tug-of-war ensued, which escalated into a heated campaign of no less than six separate lawsuits and administrative proceedings after Henry Politz, chief judge of the Fifth Circuit Court of Appeals, weighed in on Judge Buchmeyer's side. Although McBryde has won several court decisions, which have kept the two cases in his court, he has now lost in the administrative review process, which has harshly judged his behavior on the bench.
The Judicial Conference's ruling addressed many of the questions raised by the findings issued last year by a special committee of the Fifth Circuit. That committee, convened by Judge Politz to investigate McBryde's fitness to hear cases, held secret hearings and issued a report last December sanctioning McBryde.
The Judicial Conduct and Disabilities Act prevents any court from reviewing the fairness of McBryde's punishment. What can, and probably will, be reviewed now is the constitutionality of the act itself, which McBryde can challenge by filing a lawsuit in a federal district court.
In an interview, David Broiles, one of McBryde's lawyers, declined to say for the record whether the judge will file such a suit. He did, however, note that, with the conference's order, the constitutional issues are now ripe for a court to decide. Broiles also maintained that the adverse decision strengthened McBryde's hand in any subsequent legal proceedings.
"The Judicial Conference said that he can be suspended for less than a year if he comes back and convinces his judicial brothers and sisters that he's reformed. But in some ways that's even worse. Talk about a threat to judicial independence. What they're saying is, 'You can come back and beg.'"
In the likely absence of McBryde's groveling, the Fifth Circuit's order will now be fully implemented. It calls for McBryde, who stands convicted of terrorizing the lawyers who appeared before him, to be rebuked for the second time since this feud began. In addition to this pubic reprimand, the order grants the two dozen or so attorneys who testified against the maverick jurist a get-out-of-McBryde's-court-free card; for the next three years, their cases will automatically be assigned to another federal judge.
Finally, and most seriously, the Fifth Circuit committee ordered that the 66-year-old McBryde be assigned no new cases for a year--a provision that may raise constitutional issues, since judges enjoy life tenure subject only to congressional impeachment for high crimes and misdemeanors. The order could also cause logistical problems for the federal docket in Fort Worth, where McBryde currently receives 44 percent of the filed cases. Yet Robert B. Fiske Jr., lead attorney representing the Fifth Circuit committee, couldn't be happier. "We were very, very pleased by the decision," said the former Whitewater special prosecutor.
In its 27-page opinion, the Judicial Conference acknowledged that the sanctions entered against McBryde are the harshest ever entered against a sitting judge, short of impeachment. Nevertheless, the panel agreed with the Fifth Circuit committee's findings that McBryde had committed "intemperate, abusive, and intimidating treatment of lawyers, fellow judges, and others" and that this behavior justified the "unprecedented" sanction of suspending the assignment of cases to a sitting federal judge.
Proceedings like the one against McBryde are extremely rare. Although hundreds of complaints are leveled against federal judges each year, statistics from the Administrative Office of the United States Courts show that less than 1 percent of those complaints are taken seriously enough to warrant an investigation. In the 17-year history of the act regulating the conduct of judges, only 13 appeals have been decided by the United States Judicial Conference. In 12 of those, the conference issued only private rebukes.
The 13th case is McBryde's.
Although the Judicial Conference declined to consider McBryde's constitutional arguments, it did take small steps to insulate its decision from attack in the court system. Noting that the Fifth Circuit intended its suspension as punishment, the conference might have felt it was on shaky constitutional ground. Its decision noted that the constitutionality of punishing a judge in this manner has never been addressed by any court.
So, it "affirm[ed] the suspension, in modified form, as a remedial measure intended to ameliorate Judge McBryde's behavior in the future." Rather than punishment, it held, the judge should view it as "an 'opportunity for deep reflection'"--a distinction without a difference, since it still amounts to a time-out.
The conference also declined McBryde's longstanding request to release the full record of his closed-door administrative trial. It did, however, suggest that McBryde once again ask Chief Judge Henry Politz to make the administrative proceedings public, perhaps blacking out the names of witnesses. Given that Politz has to some degree replaced Judge Buchmeyer as McBryde's chief antagonist, the likelihood of the public getting a glimpse into an important corner of government that has nothing to do with Monica Lewinsky seems, at best, remote.