EXPERT WITNESS Brawl on the Bench

THIS IS THE TALE OF TWO LEGAL LEGends.

Their stories are quite similar. They were born during the Great Depression. They rose from humble beginnings to excel at the University of Texas School of Law, graduating a year apart. They hooked up with elite local law firms and, by dint of their smarts and their assiduousness, rose to the top of the professional heap. They caught the eye of local power brokers, who championed them for bigger things. They were nominated by the president and confirmed by the U.S. Senate for the juiciest plum in the legal grove: lifetime tenure as a federal district judge. They have served with distinction. Widely lauded for their furious work ethic and their legal acuity, they are perched atop the list of the most powerful players in the Dallas-Fort Worth legal community.

And they’re at each other’s throats.

Judge Jerry Buchmeyer of Dallas and Judge John McBryde of Fort Worth, the federal Brahmins in question, are engaged in a public pissing match the likes of which rarely, if ever, have been seen in the decorous corridors of the federal district courts. Ostensibly, it is a dispute over control of a couple of run-of-the-mill cases. In reality, it cuts much deeper than that.

This is a dispute about power-unfettered power and its use and abuse. It is also about a slippery concept called “judicial temperament.” That’s something we demand of our judges. But it eludes definition. It calls to mind former U.S. Supreme Court Justice Potter Stewart’s famous definition of pornography: “I know it when I see it.”

The struggle between Buchmeyer and McBryde raises a thorny question; If a judge is hell on wheels-despicable and despotic-should he be raked over the disciplinary coals and perhaps even drummed off the bench? And what if a judge is an activist, as Buchmeyer has been labeled for his overreaching constitutional rulings?

These issues of judicial discipline are what’s at stake in the epic battle between Buchmeyer and McBryde. That the conflict is playing out in a federal venue makes it all the more interesting. The power of federal district judges is substantial. They enjoy lifetime tenure, including full pay and generous benefits even upon retirement. The trappings of the office are magisterial: august courtrooms and chambers; the best and brightest law school grads to do their bidding; ample support staff; and the full weight of the federal government behind them- 1RS and FBI agents, U.S. Marshals, the Department of Justice. They are impossible to dislodge from office; only Congress can impeach them. (That never happens.)

Compare that to the typical state or municipal judge, who works in cramped quarters, is perennially understaffed, and must beg voters every few years just to keep the job.

Then there are the cases. Unlike state judges, who sometimes seem like bouncers breaking up barroom brawls, federal judges are entrusted with some of society’s weightiest matters: constitutional issues of historic moment like school and housing desegregation; racketeering and organized crime trials; bet-the-company antitrust disputes.

Buchmeyer himself has summed up the nature of federal judicial power with an oft-told joke. “Judge Smith is changing his religion,” goes the setup. “He no longer believes he is God.”



THE WELL-PUBLICIZED TUSSLE BE-tween Buchmeyer and McBryde appears, in retrospect, to have been almost inevitable. Although their backgrounds seem similar, it is hard to imagine two men who captain their judicial ships so differently at the helm of essentially the same vessel. If McBryde’s courtroom is Queeg’s Bounty or Bogart’s Caine, then Buchmeyer’s is the Good Ship Lollipop.

Buchmeyer’s signature is his sense of humor. He writes an immensely popular column for the Texas Bar Journal, the State Bar’s monthly magazine, in which he presents courtroom malapropisms that lawyers and judges send him. The column is so well-loved that the judge’s name has taken on a second meaning; every local lawyer knows what it means to “pull a Buchmeyer.”

Buchmeyer once did a series of radio spots at the request of the State Bar, which, following the lead of Dr. Red Duke’s health reports, wanted to put a human face on the legal profession. As always, he was quick to poke fun at his own caste, the federal Brahmins.

“How many federal judges does it take to screw in a light bulb?” he asked in one spot. “Only one. He just holds onto the bulb-and the universe revolves around him.”

Buchmeyer, however, is the opposite of the stereotypical federal judge of the imperial variety-except, that is, when it comes to some of his more expansive rulings. He rubs elbows with the lawyers who hang out at the Belo Mansion, home of the Dallas Bar Association, where he served as president before being appointed to the bench in 1979 by Jimmy Carter. He is one of the top draws at the Dallas Bar Association’s annual Bar None show, an irreverent amateur theatrical where all targets are fair game.

Yet Buchmeyer’s humor does not turn his courtroom into a burlesque palace. He gets high marks for the manner in which he runs his judicial show and repeatedly has been singled out by bar groups as the best judge in the district. By no means does he banish humor; rather, he gently uses levity to grease the skids of judicial administration. He puts stressed-out litigants and lawyers at ease, and that seems to smooth the way for the weighty judicial business at hand.

“He doesn’t hamper people with a higher level of stress and tension than necessary,” says Mike Daniel, a Dallas civil-rights lawyer who has spent ample time before Buchmeyer on landmark housing cases. “He puts people at ease so the important business can get on and get done.”

The local federal public defender, Ira Kirkendoll, also sings his praises. “He’s outstanding,” says Kirkendoll. “He listens, he’s fair, he’s reasonable. He’s just a gentle soul, polite and courteous to counsel and to their clients.”

Not that Buchmeyer can’t anger. He certainly can. But his style, according to Daniel, is to withdraw and get quiet. He does not vent. Still, there is never any doubt who is in charge. Buchmeyer, by all accounts, puts in long hours, is highly intelligent, always prepared, and on top of his docket.

But he never takes himself too seriously. As he explained more than a decade ago in a profile in The Dallas Morning News, when he gets up in the morning he plays a little game of “mirror, mirror on the wall.”

“Am I an SOB yet?” he asks his mirror.

If the answer is no, he knows he’s still on the right judicial track.



IF JOHN MCBRYDE PLAYED THE SAME game, it’s hard to believe the mirror wouldn’t crack under the strain, so fearful would it be of what the judge would do if he were faced with an honest answer.

Lawyers say McBryde isn’t only an SOB; he’s an equal-opportunity SOB. He treats everyone miserably. In McBryde’s Fort Worth courtroom, there is no room for nonsense. Lawyers describe it as something out of G.I. Jane-the law as Navy SEAL training.

McBryde runs his courtroom like he’s late for an execution. Lawyers are strictly limited in the amount of time they have to present their cases, and McBryde is legendary for his impatience. He prides himself on keeping a tidy docket, which means speed is of the essence. Given his own notorious work ethic and fierce intelligence, his court becomes a very difficult place to practice law.

Some, especially the older lawyers in town who have practiced with, against, and before McBryde. praise his style. They say it is no different than the style he had as a 7-year-old boy delivering shoes for a cobbler, as a law student selling brushes and Bibles door to door, or as a lawyer defending insurance companies with an intransigence that likely would not sit well in his own courtroom. By all reports he was a fearsome, nose-to-the-grindstone advocate who went full-bore for his clients.

“He was an outstanding lawyer and he’s an excellent judge,” says Beale Deane, an elder statesman of the Fort Worth bar who has known McBryde for most of his professional life. “He’s not any more demanding on the lawyers than he is on himself. You don’t get in trouble in his court if you follow the rules.”

William Bogel, McBryde’s former law partner, agrees. “He gets a bad rap from lawyers who don’t mind their P’s and Q’s. I think he’s an extraordinary judge.”

Those who squared off against him in practice say his style as an advocate, which could be quite obstructionist, would not have gone over well in his own courtroom, where moving cases is the order of the day.

“Lawyer McBryde might not have fared well in front of Judge McBryde,” says William Hughes, a former state judge who has practiced with and in front of McBryde.

Interestingly, both Buchmeyer and McBryde are described as activists, a dirty little word in conservative circles. Buchmeyer’s label comes from the traditional route-a liberal judge overstepping the bounds of restraint in his rulings. He has earned his activist stripes through rulings on a series of controversial and high-profile cases.

In the 1980s, Buchmeyer presided over a housing desegregation suit and signed off on a settlement that for the first lime allowed racial minorities to use federal funds to rent apartments in suburban cities. (He’s also been in the middle of the recent tangle over the construction of low-income housing in North Dallas.) In a 1991 voting-rights case, he struck down the Dallas City Council election system because it diluted the voting power of minorities. (It’s hard to argue that 14-1 is an improvement.)

The next year, Buchmeyer dumped the city’s teen curfew law because he said it trampled on the fundamental rights of law-abiding youths. And just last year, Buchmeyer issued what some say is an over-the-top decision in a sexual harassment case against Atlanta-based Waffle House, blazing away with both barrels at company execs in a blistering 194-page attack. Buchmeyer’s actions prompted Waffle House attorneys to file an unusual motion demanding that he be removed as trial judge and alleging he secretly filed more than a dozen depositions, some with pages missing.

Such decisions have made Buchmeyer a sitting duck for lawyers and politicians who believe some federal judges exercise their considerable power to advance liberal political agendas. Yet despite all the ravings over the years about judges like Buchmeyer, Barefoot Sanders, and William Wayne Justice, the threats are invariably empty as even the most vociferous critics are unwilling to take the push of rhetoric and turn il to the shove of impeachment. More often, they do what the Senate has done for years-drag their feet on certain unpalatable nominees.

On the other hand. McBryde has earned his activist stripes in a very different way: through his personal style in the litigation trenches. McBryde is a courtroom activist-so involved, impatient, and hyper-prepared that he simply takes over. The lawyers and even the jury appear superfluous.

All of which has led to a catalogue of horrors attributed to the cantankerous McBryde. There’s the lawyer ordered to take remedial reading lessons because he misread a court order; the federal prosecutor ordered into a legal ethics course for failing to settle a case; the corporate and government chieftains hauled to Fort Worth to pressure them into settling cases; the steady stream of monetary sanctions meted out for various degrees of dalliance and disrespect; the juror who, upon telling McBryde she could not serve because her son’s wedding was the next day, was told to reschedule it; the public defenders who must stay on the same floor as the courtroom during jury deliberations because, once upon a time, one of them slipped out for a bite of lunch and temporarily could not be reached; the tax protester who uttered a disparaging word to McBryde and was whisked off to federal prison for 20 days.

And McBryde*s reach extends beyond the courtroom. One day he grew incensed by the smell of popcorn popping. So he banned the smell of cooking from the hallways of the federal courthouse.

Not surprisingly, McBryde’s conduct has earned him the enmity not only of many lawyers, but of the Fifth U.S. Circuit Court of Appeals, which has had to rein him in on occasion. But that hasn’t daunted McBryde, who seems almost pathological in his drive to keep things moving at supersonic speed-even, some lawyers say, if it means sacrificing substantial justice in the process.

That’s the opinion of David Martin, a Waco litigator who was so outraged over McBryde’s oversight of his one trial in front of the judge that he launched a widely publicized-and futile-effort to have him impeached. Martin insists McBryde’s intrusive and abusive behavior simply made it impossible for his clients to get a fair trial.

“McBryde takes over the entire proceeding,” says Martin. “You don’t have a jury trial; you have a trial in front of Judge McBryde. You might as well not even have a trial.

“He doesn’t have a judicial temperament,” Martin continues, invoking the magic words. “He doesn’t belong on the bench. He is a tyrant.”



THOUGH MARTIN FAILED IN HIS EFFORT to have McBryde removed from office, he did get another crack at the judge last year when the Judicial Council of the Fifth Circuit, a 19-member panel of judges with the power to discipline their colleagues (though not remove them), used Mc-Bryde’s run-in with Buchmeyer to launch a broader inquiry into McBryde’s temperament.

The McBryde-Buchmeyer affair began in 1995 when the two tangled over a pair of routine cases. But, as detailed in an article in the Fort Worth Star-Telegram, the roots of the dispute may run a bit deeper-to a 1993 incident in which their contrasting styles ran smack into each other.

That was the year Buchmeyer penned a little doggerel ditty for the State Bar’s annual vaudeville show. Called “King McBryde’s Song,” it featured unflattering lines like, “Stupid lawsuits, motions wasting time/That’s gonna stop, ’cause I’m your God/And I’ll treat you like slime.”

Generally, everyone is fair game at the gridiron show-everyone, that is, except King McBryde. When he got wind of Buchmeyer’s verse, he went ballistic. Buchmeyer apologized, but the damage was done. In fact, McBryde would refer to the incident years later when explaining to the Judicial Council the roots of the problem between himself and his colleague. That problem arose when Buchmeyer, exercising his administrative authority as chief judge of the district, yanked two cases from McBryde’s docket and put them on his own.

They were minor affairs. One arose when McBryde got peeved when a clerk slipped up and failed to invest in an interest-bearing account some funds from a wrongful-death settlement. McBryde was irked by what seemed to be a delay in notifying him of the screw-up and he allegedly threatened the clerk for her insolence; Buchmeyer would later say the delay arose from the clerk’s fear of the eruption of the volcanic McBryde. The matter escalated and Buchmeyer, as chief judge in the district, took over the case.

The other case was a criminal matter dealing with telemarketing fraud. In this instance, McBryde accused a federal prosecutor in Arizona of lying and allegedly tried to get her to violate a sealing order of an Arizona judge. Again, Buchmeyer jumped into the line of fire and took over the case.

That ignited McBryde’s fuse. The papers flew between the judges, rife with unusually nasty comments. McBryde, who takes no matter lightly, sought the intercession of the Judicial Council, asking the body to order the cases returned to his docket.

But the council sided with Buchmeyer. In its Oct. 20, 1995 order, the council called McBryde ” abusive” and “an impediment to the effective administration of justice.”

McBryde battled back. At substantial personal expense, he hired a Washington, D.C., lawyer to help him pry the cases out of Buchmeyer’s hands. The Judicial Council turned to Robert Fiske, the former Whitewater prosecutor. A rather mundane administrative dispute was mushrooming out of control.

McBryde’s lawyers went on the attack and asked the Fifth Circuit to overturn the Judicial Council. In one brief, McBryde called Buchmeyer a liar and launched scathing personal attacks on certain council members by relating the none-too-flattering opinions lawyers had expressed about them over the years. And then, much to the surprise of many, the Fifth Circuit vindicated McBryde and ordered Buchmeyer to return the cases to his docket. The court, citing the paramount importance of judicial independence, said Buchmeyer jumped the gun and usurped his colleague’s judicial authority.

McBryde’s local lawyer, David Broiles of Fort Worth, says thai Henry Politz, chief judge of the Fifth Circuit and a member of the council, had warned McBryde along the way that if he pursued the matter the council would hang his entire judicial career on the line. And last year, that’s just what happened as the council launched a broad-based inquiry into McBryde’s fitness to serve as a federal judge.

For a “secret” proceeding, it was certainly well-known, as a small legion of lawyers, most with McBryde horror tales to tell, were paraded before an investigative panel to confront their tormentor. Many of them were federal prosecutors and public defenders, who spend the most time in McBryde ’s courtroom and have had their share of run-ins. McBryde countered with a troupe of his own witnesses, whom Broiles says were quite easy to find, and they sang songs of praise.

Everyone agrees it was an unprecedented spectacle. A federal judge’s temperament was on trial. The denouement came last New Year’s Eve, when the council faxed an order to McBryde’s chambers slapping him with what experts say is one of the harshest possible punishments: It temporarily halted the assignment of new cases to him. (There is, of course, no small irony in such a “punishment” for a judge obsessed with keeping a clean docket.) The council’s timing was noteworthy. It was as if Mc-Bryde’s fellow federal judges were handing their wayward colleague a New Year’s resolution designed to turn over a new leaf in the Fort Worth federal courthouse.

Not quite. McBryde is appealing to the Judicial Conference, the body that oversees all the federal courts, and the Judicial Council has asked the U.S. Supreme Court to review the Fifth Circuit’s decision vindicating McBryde. Which sets up quite a scenario. The whole unseemly spectacle actually could wind up in the laps of the Brahmins of the highest federal temple of them all, the U.S. Supreme Court.

And so we may finally get an answer to one of the diciest questions in American jurisprudence: What do you do with a judge who’s an SOB?