In some ways, John Henry McBryde, federal district judge for the Northern District of Texas, Fort Worth Division, seems destined to spawn a constitutional crisis. Though he was born in Jackson, Mississippi, McBryde grew up in Fort Worth and in many ways personifies the mythical Texan: He is tall, dark, raw-boned, and gravel-voiced, with an independent streak as wide as the Gulf of Mexico.
Seated in his elevated, fruitwood-inlaid throne on the fourth floor of Fort Worth's art-deco federal courthouse, surrounded by WPA-era murals depicting "The Taking of Sam Bass" and "Texas Rangers in Camp," McBryde seems at once terrifying and oddly comforting. His magisterial black robe, stern countenance, and habit of staring over dark-rimmed bifocals make him look like a cross between Zeus and Big Tex.
Off the bench, in person, he more personifies Fort Worth: elegant, dapper, even charming, surrounded by antiques and art (Western, of course). Despite rumors to the contrary, he does have a sense of humor--though it runs more toward wit, with its sharp edge and intense civilization, than toward irony or satire. (A judge on the U.S. 5th Circuit Court of Appeals introduced a question to McBryde--under cross-examination by a panel of his superiors and with his judicial career hanging in the balance--by calling it a "rambling one." "Well, I will give you a rambling answer," McBryde replied.)
At 65, he is a wealthy man, with a personal net worth, according to the most recently available disclosure statements, somewhere in the range of four to six million dollars. Like many Reagan-Bush appointees to the bench, he tends to be a law-and-order man. He is not a favorite of the defense bar; the Fort Worth federal public defender's office, for example, dislikes him because he regularly gives maximum sentences in parole revocation cases.
But it would be a mistake to assume he is an ally of the federal government. In fact, a review of his opinions might lead one to conclude that McBryde doesn't much like the feds. Or, at least, in the words of one lawyer close to him, "He doesn't always think the federal government is right."
And that, as much as anything, may explain why John Henry McBryde--wealthy, brilliant, powerful, and protected by Article III of the U.S. Constitution--is enjoying the dubious distinction of being perhaps the first federal judge in the 210-year history of the Constitution to be secretly tried not for high crimes and misdemeanors, not for engaging in ethically smelly shenanigans, not even for being mentally or physically disabled, but for lacking a proper "judicial temperament."
McBryde is a man under siege. His attackers include a whole bunch of mad-as-hell lawyers, among them a panel of 5th Circuit judges and the U.S. Justice Department. Together, they seem to be attempting to accomplish by the back door what they could never do by the front: impeach a federal judge, in substance if not in form, on charges that amount to having a particularly nasty temper, even for a judge. Although the complaints themselves are not publicly available, the Justice Department apparently is asking that McBryde be prohibited from hearing future Justice Department cases. Meanwhile, a smattering of other aggrieved lawyers and public officials want him prohibited from hearing cases. Period.
Of course, John McBryde being John McBryde, he's not taking this lying down. Indeed, if there ever was a worthy opponent, a perfect person to take on the executive branch as well as the federal judiciary, it is McBryde.
In the two years they have been sparring, McBryde and the judicial council of the 5th Circuit--a group of 19 federal judges that oversees the administrative business of the federal courts in Texas, Mississippi, and Louisiana--have managed to inflict much damage. Things got so hot last fall that McBryde and the judicial council filed a highly unusual set of civil suits against each other, suits that, on orders from Henry Politz, chief judge of the 5th Circuit, are so far under seal it's impossible even to come up with case numbers.
And that's just the two pending in the lower federal courts. In addition, there are at least three "mandamus" actions asking the appeals court to make various officials do what they ought. One, a well-publicized case decided last summer, ordered Jerry Buchmeyer, chief judge of the Northern District of Texas, to hand back two cases he had taken away to punish the maverick McBryde. The other two, both under seal, apparently ask the appeals court to order officials, among them some in the Justice Department, to turn over evidence to McBryde--including documents that, according to a well-placed source who is not a McBryde fan, show that senior Justice Department officials have less-than-clean hands in this affair. ("Dirty laundry of gargantuan proportion," is how this person describes the goods.)
Not surprisingly, Politz is determined to bury this mess. Although the statute under which McBryde is being tried permits the judicial council proceedings to be made public if McBryde consents, as he has repeatedly done in writing, Politz is determined to decide McBryde's fate in a top-secret, star-chamber proceeding. Politz is so worried that reporters might get wind of what is really going on that he ordered them removed from public areas of the 5th Circuit Court of Appeals during the first week of McBryde's trial, which took place August 25-29 in New Orleans. (At least one was detained by the marshals after refusing to leave.) Politz has admonished witnesses in this matter not to speak with the press about the proceedings. (Politz did not return calls seeking comment.)