Full opinion text
MEMORANDUM OPINION KOLLAR-KOTELLY, District Judge. This case arises out of an investigation by a Special Committee (“Special Committee”) of the Judicial Council of the Fifth Judicial Circuit (“Judicial Council”) into the conduct of the Honorable John H. McBryde, United States District Judge for the Northern District of Texas, pursuant to the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 872(c). The Special Committee’s investigation spanned two years, culminating in a 159-page Report containing findings of fact and recommendations to the Judicial Council. On December 31, 1997, upon consideration of the Special Committee’s Report and various responses thereto, the Judicial Council publicly reprimanded Judge McBryde for “conduct prejudicial to the effective administration of the business of the courts.” As a remedial measure, the Judicial Council ordered that no new cases be assigned to Judge McBryde for a period of one year, and disqualified Judge McBryde from participating in any cases involving certain attorneys for a period of three years. Although the disqualification order took effect immediately, the assignment order was stayed while Judge McBryde sought review from the Judicial Conference of the United States. On September 18, 1998, the Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States (“Review Committee”) substantially affirmed the Judicial Council’s Order. Upon this affirmance, the assignment order took effect immediately, subject to the Review Committee’s proviso that it could be lifted if the Judicial Council found that “Judge McBryde’s conduct indicates that he has seized the opportunity for self-appraisal and deep reflection in good faith and that he has made substantial progress toward improving his conduct.” In an eight-count complaint filed on October 15, 1998, Judge McBryde challenges the constitutionality of the Act, both facially and as applied to him, on the grounds that the Act violates the separation of powers doctrine (Counts I, II and III), fails to afford due process (Count VI), and violates the First Amendment (Count VIII). In addition, Judge McBryde claims that the proceedings violated the Act and the Fifth Circuit Complaint Rules (Counts IV, V and VII). Judge McBryde names as defendants the Judicial Council of the Fifth Judicial Circuit and its Chairman, the Honorable Henry A. Politz; and the Committee to Review Circuit Conduct and Disability Orders of the Judicial Conference of the United States (“Judicial Conference”) and its Chairman, the Honorable William J. Bauer (“Defendants”). This court granted permission for the United States to intervene as a defendant for the limited purpose of defending the constitutionality of the Act. Before the Court are cross-motions for summary judgment and/or to dismiss filed by Judge McBryde, the Defendants, and the United States. For the reasons elaborated below, the Court finds that the Act is constitutional, both on its face and as it has been applied to Judge McBryde, except insofar as its confidentiality clause imper-missibly inhibits Judge McBryde’s ability to speak openly about the proceedings. In particular, the Court finds that the Act does not usurp or encroach upon the power of impeachment that properly resides with the Legislative Branch. Nor does the Act jeopardize the independence of the judiciary, an invaluable facet of our democracy that stands to be enhanced by judicial self-monitoring. Moreover, because the Act authorizes review not of the merits of a judge’s legal decisions, but of a judge’s alarming or destructive pattern of conduct, it poses no threat to a federal judge’s Article III function. In response to Defendants’ contention that the Act’s finality clause bars review of Judge McBryde’s claims, the Court determines that it retains jurisdiction to consider these claims to the extent they allege facial violations of the statute or violations of Judge McBryde’s constitutional rights, whether facial or as-applied. Thus authorized to conduct such a review, the Court concludes that no facial violations of the statute took place, with respect either to the scope of the investigation or to the nature of the material which the Special Committee and the Judicial Council addressed. After evaluating carefully Judge McBryde’s assertion that Defendants im-permissibly reviewed the merits of his judicial decisions, the Court finds that they confined their investigation to a pattern of behavior toward attorneys and others, which they found demonstrates intemperance and abusiveness. Further, the Court concludes that the sanctions levied against Judge McBryde did not transgress into the forbidden realm of impeachment, but rather were limited in scope and tailored to the problem that his behavior posed. The Court finds against Judge McBryde on his due process claims, since Defendants provided him with the fundamental requirements of due process, including notice and an opportunity to be heard. The Court is, however, persuaded by Judge McBryde’s contention that the Act’s confidentiality clause, as it has been applied to him, operates as an impermissible prior restraint on his speech. Now that the proceedings have concluded and the sanctions against him have been imposed, Judge McBryde must enjoy the opportunity to speak openly and freely about those proceedings, absent some sufficiently compelling interest to justify curtailment of this opportunity. Defendants have demonstrated no interest of that magnitude here. I. BACKGROUND The Judicial Council’s investigation and subsequent discipline of Judge McBryde represents the most significant application of the Judicial Conduct and Disability Act, 28 U.S.C. § 372, since its enactment in 1980. Congress designed the Act to provide a mechanism whereby the Judicial Branch can systematically investigate and resolve allegations of judicial misconduct or disability. See S.Rep. No. 96-362, at 1, reprinted in 1980 U.S.C.C.A.N. 4315, 4315. In an effort to address “the growing public demand for the accountability of public officials,” id. at 5, members of Congress and the Judicial Branch worked together to draft legislation that would provide an alternative means of remedying conduct that is prejudicial to the administration of justice, and yet does not rise to the level of an impeachable offense, criminal infraction, or reversible error. See H. Rep. No. 101-512, at 10, reprinted in 1990 U.S.C.C.A.N. 6879, 6884 (detailing the involvement of the judiciary in drafting the Act). The conduct targeted by the Act ranges from such intangibles as a lack of “judicial temperament” to patterns of abusive behavior that threaten to undermine the integrity of the judiciary as a whole, as well as behavior symptomatic of an underlying disability. While recognizing that cases of judicial misconduct were infrequent, Congress found that these “[r]are instances of judicial misconduct that have gone unchecked prompt the establishment of a procedure within the judiciary for the processing of complaints aimed at a federal judge.” S.Rep. No. 96-362, at 5. The ultimate question before the Court is whether these procedures violate the Constitution, both on their face and as they were applied to Judge McBryde. A. The Statutory Scheme In this section, the Court shall present a brief overview of those statutory provisions at issue in this litigation. Section 372(c)(1) permits any person alleging that a district judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” to file a written complaint with the chief judge of the circuit. 28 U.S.C. § 372(c)(1). In the alternative, § 372(c)(1) allows the chief judge to “identify” a complaint on the basis of information available to him or her. Id. Upon expeditious review of a complaint, the chief judge has three options: he may dismiss the complaint, see id. § 372(c)(3)(A); conclude the proceeding, see id. § 372(c)(3)(B); or initiate an investigation by appointing a special committee, see id. § 372(c)(4)(A). If the chief judge decides to appoint a special committee to investigate the charge, the committee “shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the judicial council of the circuit.” Id. § 372(c)(5). After the special committee files its report, the Act empowers the judicial council to respond in a number of ways. If it appears necessary, the judicial council may conduct an additional investigation pursuant to § 372(c)(6)(A). Alternatively, the judicial council may dismiss the complaint pursuant to § 372(c)(6)(C). If the judicial council decides to act on the special committee’s report, the Act directs that the judicial council shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit, including, but not limited to, any of the following actions: (iv) ordering that, on a temporary basis for a time certain, no further cases be assigned to any judge or magistrate whose conduct is the subject of a complaint; (vi) censuring or reprimanding such judge or magistrate by means of public announcement; or (vii) ordering such other action as it considers appropriate under the circumstances. Id. § 372(c)(6)(B). Although a complainant or judge aggrieved by the judicial council’s action may petition the Judicial Conference of the United States for review, in all other respects, any orders and determinations “shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.” Id. § 372(c)(10). Judge McBryde has also challenged the Act’s confidentiality clause, id. § 372(c)(14), which renders confidential “all papers, documents, and records of proceedings related to investigations conducted under this subsection.” These materials “shall not be disclosed by any person in any proceeding,” unless “such disclosure is authorized in writing by the judge ... who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee Id. § 372(c)(14)(C). The confidentiality clause features certain other exceptions, but § 372(c)(14)(C) is the only one that is at issue here. B. The Special Committee’s Investigation and Report Judge McBryde’s difficulties with his colleagues on the Fifth Circuit date back to the spring of 1995, when Chief Judge Jerry Buchmeyer of the Northern District of Texas transferred two cases, from Judge McBryde’s docket to his own. See In re McBryde, 117 F.3d 208 (5th Cir.1997) (“McBryde I”) (providing a detailed description of the events leading up to the transfers). In May 1995, Chief Judge Politz convened a meeting with Judge McBryde and Chief Judge Buchmeyer in an attempt to resolve informally this dispute over the matters involving the two cases, United States v. Satz, and Torres v. Trinity Industry Inc. See Pl.’s 108(h) ¶ 14. At the meeting, Judge McBryde informed his colleagues that he intended to seek the Judicial Council’s assistance in returning these cases to his docket. Id. ¶ 15. In response, Chief Judge Politz “told Judge McBryde that if he sought the assistance of the Judicial Council in resolving the legal issue at the heart of this dispute, his entire career as a judge would be explored.” Id. ¶ 16. Notwithstanding this remark, Judge McBryde filed a request for assistance in June 1995, pursuant to 28 U.S.C. § 332. Id. ¶ 19. In July 1995, an attorney filed a complaint describing Judge McBryde’s “obstructive, abusive, and hostile conduct” during trial. Id. ¶ 20. While the controversy over Satz and Torres continued to develop, Chief Judge Politz “identified” other complaints about Judge McBryde. See 28 U.S.C. § 372(c)(1) (authorizing the Chief Judge to identify complaints). On September 13, 1995, Chief. Judge Politz appointed a Special Committee pursuant to 28 U.S.C. § 372(c) to investigate the allegations of misconduct that had been levied against Judge McBryde. Pl.’s 108(h) ¶ 24(u). This same committee was also charged with the task of investigating Judge McBryde’s request for assistance with Satz and Torres. Id. ¶ 27. The Special Committee held a hearing on Judge McBryde’s request for assistance on October 19, 1995. Id. ¶ 29. Although the Judicial Council denied Judge McBryde’s request for assistance, id. ¶ 44, the United States Court of Appeals for the Fifth Circuit ultimately granted Judge McBryde’s petition for a writ of mandamus and vacated Chief Judge Buchmeyer’s reassignment orders. See McBryde I, 117 F.3d at 231. During the nineteen months between the denial of Judge McBryde’s request for assistance and the Fifth Circuit’s decision in McBryde I, the Special Committee continued to spar with Judge McBryde. The members of the Special Committee were “concerned about two things: first, that Judge McBryde may have a health problem (mental or physical) which affects his activities as a judge, and second, that Judge McBryde has engaged in a pattern of abusive behavior as a federal judge.” Report at 3. These concerns led the Special Committee to seek the advice of two psychiatrists, without Judge McBryde’s knowledge or consent. Pl.’s 108(h) ¶¶ 51-54. On the recommendation of the two psychiatrists, the Special Committee asked Judge McBryde to submit to a psychiatric evaluation. Id. ¶ 55. Judge McBryde refused. On July 31, 1996, the Special Committee obtained an order from the Judicial Council requiring Judge McBryde to undergo a full psychiatric examination. Id. ¶ 73. After Judge McBryde initiated a lawsuit challenging the order, the Judicial Council sought a contempt finding against Judge McBryde for violating the order. Id. ¶¶ 76-79. Concerned that the 372(c) investigation was becoming mired in controversy over the psychiatric examination, the Special Committee obtained a stay of these proceedings. Id. ¶ 81. Two other significant developments occurred during this period. Reacting to the mounting allegations of “repetitive, abusive, and excessive conduct by Judge McBryde beyond the allegations in the five complaints,” Chief Judge Politz decided to expand the scope of the investigation pursuant to § 372(c)(5), and Judge McBryde engaged in a series of legal skirmishes with the Judicial Council and the Fifth Circuit over the appropriate forum for subpoenas ad testificandum and duces te-cum. See Report at 8; see generally In re McBryde, 120 F.3d 519 (“McBryde II”). On August 25, 1997, the Special Committee’s evidentiary hearings finally commenced. Report at 9. The Special Committee Report summarized these proceedings as follows: The Special Committee conducted evi-dentiary hearings in New Orleans on August 25 through August 29, 1997 and in Forth Worth on September 29 through October 2, 1997. During the nine days of hearings, the Special Committee received in evidence hundreds of exhibits, mostly court records and transcripts in matters before Judge McBryde. Among the witnesses presented by Special Counsel were four federal District Court Judges; one Texas State Court Judge; a former U.S. Attorney for the Northern District of Texas; the Director of Enforcement of the Securities and Exchange Commission; the head of the Public Defender’s Office in Fort Worth; Assistant U.S. Attorneys and Federal Public Defenders; the Clerk of the District Court for the Northern District of Texas; and private attorneys who practiced before Judge McBryde. Judge McBryde’s witnesses included private and public attorneys who practiced before him; court personnel; employees of the General Services Administration (“GSA”); former members of juries which decided cases over which he presided; and present and former members of his staff. Report at 9-10. After digesting evidence about numerous discrete incidents and events spanning Judge McBryde’s tenure as a federal judge, the Special Committee concluded that “[w]hen viewed in isolation, the incidents described above run the gamut from outrageous to inappropriate. When viewed together, the incidents bespeak several alarming patterns of conduct exhibited by Judge McBryde over the course of his tenure on the bench.” Id. at 124. These patterns fall into five categories: “Proclivity to Question Integrity,” id. at 124-27, “Overreactions and Abusive Sanctions,” id. at 127-28, “Obsessive Need to Control,” id. at 128, “Inappropriate Conduct Toward Fellow Judges,” id. at 130-31, and “Effect on the Legal Community,” id. at 132-37. On December 4, 1997, the Special Committee published its findings in an extensive and detañed Report. Without repeating every detail of the Special Committee’s extensive findings, which comprise over 100 pages of the Report, the Court will briefly recount some of the representative events of Judge McBryde’s behavior. The Special Committee found that Judge McBryde tends to “overreact to perceived transgressions of his rules and expectations or intrusions on his authority.” Id. at 127-28. In one incident, Judge McBryde held an attorney in contempt of court when, due to a malfunctioning of the telephone system, the attorney’s office was unable to initiate a prompt conference call with the Court and opposing counsel. Id. at 52-55. Although Judge McBryde acknowledged that, “on the surface,” holding the attorney in contempt was unfair, he maintained that trial lawyers have to have a “tough skin.” Id. at 55. He further justified his severe reprimand by adding that “[tjhings like that have been said to me by judges over the years. It didn’t hurt my feelings. That’s part of our business.” Id. Terrified of Judge McBryde after this incident, and fearful about testifying before the Committee, the attorney accepted a temporary transfer to another district following his appearance as a witness in the Special Committee hearings. Id. On another occasion, a criminal defense attorney declined to answer a question which Judge McBryde posed because he believed erroneously that his response would waive his client’s privilege and redound to his client’s detriment. Judge McBryde refused to recess the proceeding to allow the attorney an opportunity to consult with his client or to research the issue before responding to Judge McBryde. Instead, Judge McBryde ordered in open court that the attorney be incarcerated until he agreed to answer the question, holding the attorney in civil contempt of court for not responding to his question. See id. at 57-59. The Special Committee did not focus on whether or not the claimed attorney-client privilege was valid — -and the Court of Appeals later found that it was not — but on Judge McBryde’s treatment of the attorney. For instance, in reference to Judge McBryde’s unwillingness to recess the proceedings to allow the attorney to research an issue which had arisen unexpectedly, the Committee wrote: “There was no exigency warranting this treatment of [the attorney], other than the self-defined exigency of Judge McBryde to complete the proceeding once it had begun.” Id. at 59. In a different case, an attorney received a call from chambers at 4:50 p.m. to inform him that, in response to his motion to continue a sentencing, the court had scheduled a hearing for 9:00 a.m. the following morning, and would require the physician to testify live at the hearing as to his client’s medical condition necessitating continuance of the sentencing. The attorney was able only to arrange for the physician to participate in a telephone conference call before the physician left town. Judge McBryde first ordered the attorney ejected from the courtroom, and later, upon permitting him to reenter, questioned the attorney in a belittling fashion about his knowledge of the use of subpoenas. See id. at 89-91. These and other such examples describe incidents in which counsel appearing before Judge McBryde attempted to explain, on the record, why they had been unable to comply with the Court’s orders. Judge McBryde, however, refused to listen to the attorneys’ explanations, cut them off, and dealt with them in a humiliating and sarcastic manner. Without commenting on the merits of the lawyers’ explanations, the Special Committee found that the sanctions Judge McBryde meted out were disproportionate to the perceived infractions, and that “this tendency to overreact and to impose disproportionate sanctions makes conducting trials or other proceedings before Judge McBryde extremely stressful on some lawyers.” Id. at 127-28. As all attorneys and judges are aware, collateral consequences involving the state bar association attach when a judge finds an attorney in contempt of court. Moreover, federal prosecutors in particular bear an obligation to report to the Office of Professional Responsibility of the Department of Justice when a federal judge accuses them of dishonesty. See id. at 82 n. 33. The Special Committee also found that Judge McBryde exhibited a tendency to accuse attorneys of mendacity without taking even the most rudimentary “steps to verify whether or not his suspicion of bad faith on the part of others is justifiable.” Id. at 126. In one such incident, he accused government counsel of negotiating in bad faith in violation of a local rule during a settlement discussion, and threatened sanctions against the attorney solely on the basis that counsel would not agree to a provision in the settlement agreement that the enforcement order be sealed from public view. Id. at 12. On the record, Judge McBryde berated counsel and disparaged his position that the need for public disclosure was a principle of law enforcement critical to the government agency. Id. at 12-14. When the attorney steadfastly adhered to the principle of full disclosure, Judge McBryde reacted in such an angry and accusatory manner that government counsel met with his colleagues to discuss his fear that he might be held in contempt and incarcerated. Id. at 14. Again, the Special Committee focused on Judge McBryde’s treatment of this and other attorneys rather than on whether or not Judge McBryde was correct on the merits of his determination that the order should be sealed. In a similar incident, Judge McBryde again concluded that government counsel were not acting in good faith in settlement proceedings when they failed to make a monetary settlement offer to a plaintiff. Id. at 38. He issued a show cause order as to why they should not be held in contempt and conducted a lengthy hearing to inquire into the attorneys’ reasoning for not making such an offer, the transcript of which the Special Committee found to include “dozens of pages of invective” by Judge McBryde. Id. at 37-39. Characterizing the government’s motion for summary judgment in this case as “an affront to the Court,” Judge McBryde “issued a broad attack on the integrity of the entire [office],” suggesting that its attorneys were “ ‘not always candid with the Court.’ ” Id. at 38. Without regard to the accuracy of Judge McBryde’s allegations, the Special Committee found that “the sarcastic and abusive language used by Judge McBryde is itself a cause of concern. There was simply no good reason to belittle and attack [the attorneys] in such a repetitive and relentless manner.” Id. at 39. On another occasion, Judge McBryde ordered on the record in open court that an attorney attend fifteen hours of a remedial reading course — and submit an affidavit attesting to her compliance with this mandate — because of her failure to adhere to Judge McBryde’s standing order that each party appear in person at settlement conferences. Id. at 21-22. After imposing this humiliating sanction, he rejected her initial affidavit of compliance, questioning her integrity, and required that she submit a new one which set out in detail the dates, times, and places of attendance. Id. at 22. A separate incident involved one trial attorney’s failure to remain in continuous contact with the court during jury deliberations. When Judge McBryde’s chambers informed the attorney that the deliberating jury had recessed for lunch, the attorney left the courthouse. Id. at 26-27. Chambers had advised the attorney in error, though, as the jury had decided to forgo lunch and to continue to deliberate, reaching a verdict while the attorney remained unavailable for 45 minutes. Id. at 27. As a result, Judge McBryde ordered that the delinquent attorney and every attorney in his office wait, without exception, on the fourth floor of the courthouse throughout jury deliberations in any ease before him, including through any lunch break or recess of the deliberations. This order remained in effect for sixteen months. Id. at 27-30. It was lifted only when an attorney from that office had to try a case before Judge McBryde on another floor while simultaneously required to wait on the fourth floor in compliance with Judge McBryde’s order. Id. at 28-29. The Special Committee found that these incidents and others reflect “an abusive tendency,” a “lack of judicial temperament,” id. at 127, and an “obsessive need to control” other persons and proceedings, id. at 129. Additionally, the Special Committee listened to testimony suggesting that attorneys who otherwise would have asked certain questions or marshaled certain arguments in order to make their record felt so intimidated by Judge McBryde, and so fearful that he would undermine them openly before a jury, that they stifled their better litigation judgment. For example, one attorney testified that, when trying a case before Judge McBryde, he and others in his office generally declined to pose questions during jury voir dire out of fear that Judge McBryde would humiliate them in front of prospective jurors. Id. at 120. Others offered similar examples of the extent to which Judge McBryde’s harsh, ridiculing, and seemingly arbitrary treatment of lawyers appearing before him exercised a chilling effect on those attorneys’ zealous representation of their clients. See, e.g., id. at 111-13, 115-16. The Special Committee found this behavior on Judge McBryde’s part to be particularly troubling, suggesting that “the cumulative effect of his trial procedures impedes the ability of lawyers to try their cases.” Id. at 122 (citing Sims v. ANR Freight System, Inc., 77 F.3d 846, 850 (5th Cir.1996)). One government counsel testified that his entire office anticipated appearances before Judge McBryde with great trepidation, and that the office had to stay on constant guard lest the attorneys make litigation decisions — such as settlement offers — out of fear rather than considered legal judgment. Id. at 133-34. As a general matter, the Special Committee emphasized the breadth of “Judge McBryde’s negative effect on the Fort Worth legal community _” Id. at 135. Notwithstanding its seventy and manifestly negative repercussions, the Special Committee underscored the fact that Judge McBryde’s intemperate and abusive behavior eluded redress except through the kind of disciplinary channel contemplated by the Act. In the words of the Special Committee, [t]he very nature of the effect of Judge McBryde’s pattern of conduct — the failure of lawyers to act; the decision to forgo asking questions or moving for relief; the sleepless nights; the refusal to accept cases; the decision to seek employment elsewhere; the compromising of advocacy as a form of self-protection — cannot be remedied through the appellate process and often cannot even be articulated in isolation. Nevertheless, the harm to the administration of justice is palpable and must be redressed. Id. at 137. Finally, the Special Committee heard testimony recounting interactions between Judge McBryde and other members of the Judiciary, both Federal and State, in which Judge McBryde behaved in a disrespectful and offensive manner. For instance, an attorney was involved in a jury trial before a state judge at the same time that Judge McBryde had scheduled the attorney to appear at a pretrial conference. See id. at 60. Concerned about the prospective overlap, counsel filed a request for a continuance on the day before the pretrial conference. Judge McBryde denied the request. Id. Surprised because jury trials usually take precedence over other matters, counsel alerted the state court judge to the conflict. The state court judge suggested that he and counsel arrive early in court to place a joint call to Judge McBryde in order to assure him that the attorney was in fact in trial. Id. Finding Judge McBryde not yet in his chambers, the two left a message to this effect; the state court judge specifically requested that Judge McBryde telephone him to discuss the conflict, since he was willing to leave the bench to accept Judge McBryde’s call. Id. at 61. Having received no word from Judge McBryde shortly before the pretrial conference was scheduled to commence, the state court judge excused the attorney and recessed the trial, leaving the jury waiting for counsel’s return. Id. At that point, the state court judge determined to see Judge McBryde privately in order to explain the situation. Along with his court reporter who drove him to federal court, leaving behind her reporting equipment, the state court judge traveled to Judge McBryde’s chambers where he was directed to wait in a conference room along with two lawyers who were participating in the pretrial matter. Id. Shortly thereafter, one of Judge McBryde’s law clerks entered the eonference room, obviously embarrassed, to deliver a message to the state court judge from Judge McBryde that “Judge McBryde told me to tell you that you are not welcome here and you are to leave.” Stunned, the state court judge departed after requesting that Judge McBryde release the trial counsel as soon as possible, since a jury awaited his return to resume the trial. Id. at 62. By way of explanation for this conduct, Judge McBryde asserted that he assumed the state court judge had come to engage in a confrontation. Id. at 63-64. As evidenced by this incident, Judge McBryde was quick to impute improper motives and bad faith not only to attorneys appearing before him, but also to his peers, whom he treated in a like manner. See id. at 64. In its Report, the Special Committee ultimately recommended that Judge McBryde be given a choice: to retire voluntarily, id. at 151-52, or to face sanctions, including a public reprimand, id. at 152, suspension of all new case assignments to Judge McBryde for one year, id. at 152-54, and disqualification of Judge McBryde for a period of three years in any case involving a lawyer whom the Special Committee had identified as a potential witness at the hearing, id. at 154-58. C. Action by the Judicial Council and the Review Committee On December 17, 1997, the Judicial Council for the Fifth Circuit held a hearing to consider the Special Committee’s Report and Judge McBryde’s response thereto. See PL’s 108(h) Stmt. ¶ 134. Two weeks later, on December 31, the Judicial Council published its order and public reprimand, adopting the Special Committee’s Report, findings of fact, and recommendations “[t]o the extent relevant to the action” that the Council pursued. See Order and Public Reprimand. Rather than attempt to summarize the Order and Public Reprimand, the Court shall take advantage of its brevity to reproduce it in full: WHEREAS a Special Investigating Committee of the Council (the “Special Committee”), pursuant to 28 U.S.C. § 372(c)(5) and Rule 9(A) of the Fifth Circuit’s Rules Governing Complaints of Judicial Misconduct or Disability, conducted an investigation, held hearings over nine days during which over fifty witnesses testified, and received evidence regarding complaints against, and the conduct of, Judge John H. McBryde of the United States District Court for the Northern District of Texas; WHEREAS, pursuant to 28 U.S.C. § 372(c)(5), the Special Committee issued a report to the Council dated December 4,19997; and WHEREAS the Council has considered the record, the Special Committee’s Report, the Responses thereto, and statements by counsel and Judge McBryde at the Council’s December 17, 1997 meeting. To the extent relevant to the action taken below, the Council adopts by a clear majority vote the Special Committee’s Report, Findings of Fact, and Recommendations. Based thereon: 1.The Council hereby PUBLICLY REPRIMANDS Judge McBryde, pursuant to 28 U.S.C. § 372(c)(6)(B)(vi), for conduct prejudicial to the effective and expeditious administration of the business of the courts within the Circuit and inconsistent with Canon 2(A) and Canon 3(A)(3) of the Code of Conduct for United States Judges. Judge McBryde has engaged in a continuing pattern of conduct evidencing arbitrariness and abusiveness that has brought disrepute on, and discord within, the federal judiciary. This conduct is unacceptable and damaging to the federal judiciary. Judge McBryde’s intemperate, abusive and intimidating treatment of lawyers, fellow judges, and others has detrimentally affected the effective administration of justice and the business of the courts in the Northern District of Texas. Judge McBryde has abused judicial power, imposed unwarranted sanctions on lawyers, and repeatedly and unjustifiably attacked individual lawyers and groups of lawyers and court personnel. This pattern of behavior has had a negative and chilling impact on the Forth Worth legal community and has, among other things, prevented lawyers and parties from conducting judicial proceedings in a manner consistent with the norms and aspirations of our system and is harmful to the reputation of the courts. 2. Pursuant to 28 U.S.C. § 372(c)(6)(B)(iv), no new cases are to be assigned to Judge McBryde for a period of one (1) year from the effective date of this Order; and 3. Pursuant to 28 U.S.C. § 372(c)(6)(B)(vii), Judge McBryde, for a period of three (3) years from the effective date of this Order, is not to participate in (i) cases now pending before him (other than any as to which there are appellate proceedings) in which any of the attorneys listed on Attachment A are currently involved, and (ii) any and all cases filed after the effective date of this order in which the initial notice of appearance includes any of the attorneys listed on Attachment A. 4. Consistent with 28 U.S.C. § 332(d)(2), the Council directs all judicial officers and employees within the Circuit, particularly the Chief Judge of the Northern District of Texas and the Clerk of the Court for the Northern District of Texas, to take all necessary steps to carry into effect the above orders of the Council. 5. The Council hereby directs that implementation of this Order and Public Reprimand shall be stayed for 30 days after entry so that Judge McBryde may seek to appeal to, and obtain an additional stay from, the Judicial Conference of the United States. This Order shall also remain sealed during the period of any stay thereof. This order is issued on the date recited below but shall not become effective until all stays have expired or been lifted. New Orleans, Louisiana, this 31st day of December 1997. In this Order, the Judicial Council disciplined Judge McBryde with three sanctions: (1) a public reprimand; (2) suspension of all new case assignments for one year; and (3) suspension from participation of cases involving twenty-three attorneys who had testified against him at the hearings. Although the Judicial Council stayed implementation of its order for 30 days pending any appeal by Judge McBryde, Judge McBryde filed an application for a further stay to permit him additional time to petition the Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders (“Review Committee”) for review. Pl.’s 108(h) ¶¶ 169-172. The Review Committee agreed to stay the Order and Public Reprimand, with the exception of paragraph 3, until March 16, 1998, by which time Judge McBryde was required to file his intended petition for review. On March 16, 1998 Judge McBryde filed seven petitions for review of the judicial council’s actions. See 28 U.S.C. § 372(c)(10) (authorizing a complainant, judge, or magistrate aggrieved by an action of the judicial council, taken in response to the report of a special investigating committee, to petition the Judicial Conference of the United States for review). After evaluating Judge McBryde’s petitions and all of the responsive briefs, the Review. Committee issued a Memorandum and Order on September 18, 1998 in which it substantially affirmed the Judicial Council’s Order. See Review Committee Order at 27. As its sole modification, the Review Committee authorized the Judicial Council to curtail the one-year period of Judge McBryde’s new case assignment sanction if it “finds that Judge McBryde’s conduct indicates that he has seized the opportunity for self-appraisal and deep reflection- in good faith and that he has made substantial progress toward improving his conduct.” Id. at 24. D. Proceedings in this Court On October 15, 1998, Judge McBryde filed an eight-count Complaint in this Court against the Review Committee and its chairperson, Judge Bauer, and against the Judicial Council and its chief judge, Chief Judge Politz. Five days later, on October 20, Judge McBryde filed a motion for a temporary, restraining order. The United States moved, and on November 5, 1998 the Court granted its request, to intervene for the limited purpose of defending the Act against Judge McBryde’s facial constitutional challenges. See Order of Nov. 5, 1998. Although Judge McBryde initially indicated Ms preference that the litigation proceed in three stages — a temporary restraining order, a preliminary injunction, and a trial on the merits for declaratory and injunctive relief — he agreed to the Court’s proposal that, in the interests of conserving resources and achieving a prompt resolution of the issues, the latter two stages be consolidated. See generally Transcript of October 22, 1998 Phone Conference; Court’s Order of October 23, 1998 (stating that “the Court’s consideration of a preliminary injunction would be consolidated with a trial on the merits and adjudicated via cross-motions for summary judgment”). On November 2,1998, the Court denied Judge McBryde’s motion for a temporary restraining order, finding that Judge McBryde had not demonstrated that he would suffer irreparable harm if denied injunctive relief. See generally Mem. Op. and Order of November 2, 1998; CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995) (enumerating the factors a district court should weigh in determining whether to grant a temporary restraining order). Notwithstanding his earlier agreement, and after the parties had fully briefed their cross-motions for summary judgment, Judge McBryde moved for a preliminary injunction on December 9, 1998. The Court denied this motion on January 5, 1999 for substantially the same reasons it denied Judge McBryde’s earlier motion for a temporary restraining order. See generally Mem. Op. and Order of Jan. 5, 1999. On June 11, 1999, the Court conducted a hearing for oral argument on the remaining motions. Judge McBryde also requested, in two separate motions, leave to take discovery in the form of depositions, and in a third motion to continue the pending cross-motions for summary judgment until he had the opportunity conduct those depositions. In particular, Judge McBryde sought to depose participants in the § 372(c) proceedings in the hopes of eliciting facts to controvert the portion of the Judicial Council’s Order which asserts that the Council had considered the record, the Report, and Judge McBryde’s responses thereto, for the purpose of fashioning its Order and Public Reprimand. The Court denied these motions on September 30, 1999, after determining that Judge McBryde had failed to make a sufficient showing of bad faith or improper motive to justify engaging in discovery. See generally Mem. Op. and Order of September 30, 1999; see also Saratoga Development Corp. v. United States, 21 F.3d 445, 458 (D.C.Cir.1994) (holding that, under the APA, discovery is warranted only “when ‘there has been a strong showing of bad faith or improper behavior’ (so that without discovery the administrative record cannot be trusted)”) (quoting Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C.Cir.1990)). The Court also denied Judge McBryde’s Motion to Deem Admitted Statement Contained in Statement of Material Facts. Judge McBryde contended that, since neither Defendants nor the United States had complied fully with the requirements of the District of Columbia Local Rule 7.1(h) (formerly 108(h)) (mandating that each party file a concise statement setting forth all material facts as to which a genuine issue exists), the Court should act within its discretion to deem admitted the contents of his 7.1(h) Statement. The Court declined to do so, finding that the alleged deficiencies in Defendants’ and the United States’ responses to Judge McBryde’s 7.1(h) Statement derived from their contention that the finality clause limited this Court’s review to the findings contained in the Special Committee’s Report, the Judicial Council’s Order, and the Review Committee’s Memorandum and Order. See Mem. Op. of Sept. 30, 1999 at 4-5. Finally, the Court issued an Amended Protective Order releasing certain aspects of the record from the prior sealing order and maintaining others under seal. The confidentiality of the record and the pleadings in this case has presented a series of issues which the Court has resolved along the way. A detailed discussion of these issues and their resolution appears infra in Section D of the Court’s discussion. II. DISCUSSION The Court has divided its discussion of the eight counts of Judge McBryde’s complaint into four principal parts. First, the Court will consider Judge McBryde’s contention that the Act is unconstitutional on its face because it violates the separation of powers doctrine. Second, the Court will examine its jurisdiction to entertain Judge McBryde’s non-constitutional claims and his claims that the Act is unconstitutional as it has been applied to him. Third, the Court shall consider the as-applied portion of Judge McBryde’s separation of powers claim and his due process challenge to the Act’s application. Finally, the Court will assess Judge McBryde’s argument that the confidentiality clause violates the First Amendment. A. Judge McBryde’s Claim that the Act is Facially Unconstitutional In Count I of his complaint, Judge McBryde contends that “the Act is unconstitutional on its face as it applies to Article III judges because the Act empowers agencies of the Judicial Branch to punish, or change the status of, an Article III judge in violation of the constitutional scheme that the only procedure by which an Article III judge can be disciplined, or have his or her status changed, is by impeachment through the constitutional impeachment process.” Compl. ¶ 72. Judge McBryde acknowledges the legitimacy of three mechanisms for addressing claims of judicial misconduct: appellate or mandamus review by a duly constituted Article III court; impeachment by constitutionally ordained methods; or criminal prosecution. Under Judge McBryde’s analysis, the Act runs afoul of this carefully balanced scheme by allowing the Judicial Branch to exercise Congress’s exclusive impeachment power (Count I), and by authorizing administrative entities that are not Article III courts to conduct appellate review of his judicial decisions (Count II). As a result of these alleged incursions into the constitutionally protected sphere of judicial decision-making, Judge McBryde further contends that the Act compromises the constitutionally enshrined principle of judicial independence (Count III). The Court’s analysis of Judge McBryde’s separation of powers claims is guided by Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), in which the Supreme Court rejected a separation of powers challenge to the Sentencing Guidelines promulgated by the United States Sentencing Commission. Analyzing the petitioner’s claim that the Sentencing Reform Act violated the separation of powers principle, the Court carefully set forth the parameters of this important doctrine. The Constitution is not offended by some degree of commingling of functions among the three Branches, the Court held, so long as the challenged statute “pose[s] no danger of either aggrandizement or encroachment.” Mistretta, 488 U.S. at 382, 109 S.Ct. 647 (citing Morrison v. Olson, 487 U.S. 664, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (upholding judicial appointment of independent counsel); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (upholding agency’s assumption of jurisdiction over state-law counterclaims)). Thus, the Act will be unconstitutional only if it “accrete[s] to a single Branch powers more appropriately diffused among separate Branches or undermine[s] the authority and independence of one or another coordinate Branch.” Id. Where, as here, the Judicial Branch is implicated in a separation of powers challenge, the Court emphasized the need for particular “vigilance against two dangers: first, that the Judicial Branch neither be assigned nor allowed ‘tasks that are more properly accomplished by [other] branches,’ and, second, that no provision of law ‘imper-missibly threatens the institutional integrity of the Judicial Branch.’ ” Id. at 383, 106 S.Ct. 3245 (internal citations omitted). With these concerns in mind, the Court will turn to the merits of Judge McBryde’s three separation of powers claims. 1. Whether the Act Endows the Judicial Branch with Powers More Appropriately Exercised by Other Branches (Count I) At the heart of Judge McBryde’s separation of powers argument is his contention that the Act impermissibly authorizes the Judicial Branch to exercise Congress’s exclusive power to remove a sitting judge from office. Both the language of the Act and its legislative history, however, make it abundantly clear that the Judicial Branch is not so empowered. The Senate Judiciary Committee Report on the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980 discussed this issue at length, carefully weighing contemporaneous suggestions that the Act’s mechanisms might encroach on the impeachment power. See S.Rep. No. 96-362, at 4-6, reprinted in 1980 U.S.C.C.A.N. 4315, 4318-20. In response to concerns that removal of a sitting judge by any means other than impeachment would be unconstitutional, the statute was drafted to satisfy the “growing public demand for accountability” without interfering with the impeachment mechanism. Id. at 5. The language of the Act therefore expressly prohibits removal, providing that “in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior.” 28 U.S.C. § 372(c)(6)(B)(vii). As an additional safeguard against encroachment of the impeachment power, the remedial measures are narrowly drawn such that they may not effect the removal of a sitting judge from office. See id. § 372(c)(6)(B)(iv) (granting power to suspend new case assignments, but only “on a temporary basis for a time certain”); id. § 372(c)(6)(iii) (authorizing the judicial council to request retirement, but not to order it). Considering a similar attack on the constitutionality of the Act, the Eleventh Circuit rejected “the argument that the Act is unconstitutional because any measures which may place pressure on a judge constitute a form of removal from office by means other than by impeachment.” In re Certain Complaints, 783 F.2d 1488, 1507 (11th Cir.1986) (“Hastings II”). Similarly, the Senate Judiciary Committee concluded that the Act creates a “supplement to, but not a substitute for; the seldom used process of impeachment.” Id. at 3. Because the scope of its remedial measures does not extend to actual removal from office, the Act plainly does not usurp or encroach upon the Legislative Branch’s exercise of the impeachment power. See Mistretta, 488 U.S. at 393, 109 S.Ct. 647 (approving the location of the Sentencing Commission within the Judicial Branch, in part, because it does not “trench upon the prerogatives of another Branch”). Judge McBryde’s alternative “absence of power” argument is equally devoid of merit. In this regard, Judge McBryde adopts the views espoused by Justices Black and Douglas dissenting in Chandler. See Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 135—37, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) (arguing that the constitutional silence as to other means of judicial discipline should be interpreted as an absolute prohibition) (Douglas, J., dissenting). Whereas Justice Douglas concluded that “[u]nder the Constitution the only leverage that can be asserted against [a sitting judge] is impeachment,” id. at 136, 90 S.Ct. 1648, the view that ultimately carried the day held that the “extraordinary machinery of impeachment” cannot be the only recourse in cases of alleged judicial misconduct involving intemperate or abusive behavior, id. at 85, 90 S.Ct. 1648. See also Mistretta, 488 U.S. at 887, 109 S.Ct. 647 (noting that Chandler specifically upheld the Congress’s ability to vest in judicial councils authority to “make all necessary orders for the effective and expeditious administration of the business of the courts”); Hastings v. Judicial Conference of the United States, 593 F.Supp. 1371, 1380 (D.D.C.1984) (Gesell, J.) (finding that the judiciary has the “inherent power” to take reasonable disciplinary measures), aff'd in part and vacated in part, 770 F.2d 1093 (D.C.Cir.1985) (“Hastings J”). In Hastings II, the Eleventh Circuit determined that the Act’s remedial measures do not “intrude upon Congress’s sole power of removal or impeachment.” 783 F.2d at 1509. Read together, Chandler and Hastings II stand for the proposition that Congress’s impeachment power presents no obstacle to attempts to enforce reasonable rules of conduct via sanctions short of removal. See Chandler, 398 U.S. at 85, 90 S.Ct. 1648 (confirming the judiciary’s inherent authority to put its “own house in order”); Hastings II, 783 F.2d at 1509; Hastings I, 770 F.2d at 1099. Impeachment may be the only means of removing a judge, but the Court agrees with the Defendants that it is not the only means by which a judge can be disciplined for judicial intemperance and despotic behavior not always susceptible to review by other means. 2. Whether the Act Threatens the Institutional Integrity of the Judicial Branch (Count III) There can be no question that the independence of the judiciary is a “fundamental preceptf] upon which our systems of government is founded.” Hastings I, 770 F.2d at 1104 (Edwards, J., concurring). In the hallowed words of Alexander Hamilton, the “independence of the judges is ... requisite to guard the constitution and the rights of individuals [against legislative encroachments and] from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves.” The Federalist No. 78, at 527 (A. Hamilton) (J. Cooke ed.1961). Indeed, the Supreme Court has stressed “the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function.” Chandler, 398 U.S. at 84, 90 S.Ct. 1648; see also Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (stating that the Constitution “commands that the independence of the judiciary be jealously guarded, and ... provides clear institutional protections for that independence”). To that end, the Constitution guarantees that individual judges shall “hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const. Art. III. § 1. These protections are counterbalanced to some extent by the impeachment power, which allows the Legislative Branch to remove judges from office under certain circumstances. See id., art. I, §§ 2, 3. Together, these safeguards were designed to insulate the Judicial Branch — both the institution and the individual decision-makers that comprise it — from undue influence emanating from its coordinate Branches, while ensuring some degree of accountability. Congress supplemented these constitutional measures almost immediately with various statutory limitations on the independence of individual judges. See Hastings, 593 F.Supp. at 1379 (providing examples of limitations placed on individual judges by the first Congress). Some ex-ampies curtailing particular activities include criminalization of bribery, Act of 1790, ch. 9, sec. 21, 1 Stat. 117; the recusal requirement, Act of May 8, 1792, ch. 36, sec. 11, 1 Stat. 278 (codified at 28 U.S.C. § 455); and the prohibition on the practice of law by judges, Act of December 18, 1812, ch. 5, 2 Stat. 788 (codified at 28 U.S.C. § 454). See Hastings, 593 F.Supp. at 1379. Over the years, as the Judicial Branch grew, its members came to recognize the need for “a statutory framework and power whereby they might ‘put their own house in order.’ ” Chandler, 398 U.S. at 84, 90 S.Ct. 1648. This goal was first realized in 1939 with the creation of the judicial councils and the Judicial Conference, the constitutionality of which “seems to be established.” Hastings I, 770 F.2d at 1099. The Judicial Conduct and Disability Act represents the latest in this series of measures designed to protect the integrity of the judiciary as a whole by placing limits on the independence of individual judges. See In re Petition to Inspect, 735 F.2d 1261, 1265-66 (11th Cir.1984) (finding the broad purposes of the Act to be preservation of the integrity of the judiciary, maintaining public confidence in the judicial process, and strengthening judicial independence). The Act is unique among these measures, however, in that it places the onus on the Judicial Branch actively to police the conduct of its own members, a responsibility willingly assumed by the Judicial Branch when it collaborated with Congress in fashioning this legislation. Judge McBryde maintains that judicial independence resides primarily in the unfettered autonomy of individual judges, and that this independence is fatally compromised by giving one judge power over another. The Chandler Court divided on precisely this question. Writing for the Court, Justice Burger apparently rejected the notion “that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business.” Chandler, 398 U.S. at 84, 90 S.Ct. 1648; see Hastings II, 783 F.2d at 1505 (reading Chandler “as rejecting any fixed notion ... that courts are mere collections of individual judges, each of whom is a complete law unto himself or herself.”). Concurring in the judgment, Justice Harlan implicitly preferred institutional independence over individual independence when he specifically approved the judicial council’s use of its statutory powers to remedy “what the Council members perceived as a threat to public confidence in the administration of justice.” Id. at 125, 90 S.Ct. 1648. Judge McBryde’s understanding of judicial independence, though, most closely approximates the dissenting views of Justices Black and Douglas, who would have held that the principle of judicial independence bars the judiciary from censuring or otherwise disciplining its own members. See id. at 136-38, 90 S.Ct. 1648. Hastings II characterized the difference between the Chandler majority and the dissenters as follows: “The key to the disagreement ... may well lie in the fact that whereas the dissenters saw the realm of judicial independence to be all-encompassing, the majority located a judge’s protected independence more narrowly, ‘in deciding cases or in any phase of the decisional function.’ ” Hastings II, 783 F.2d at 1506-07 (quoting Chandler, 398 U.S. at 84, 90 S.Ct. 1648). Hastings II went on to affirm that the judicial council’s power to discipline “does not transgress the Constitution’s vision of the independence of each Article III judge.The judiciary could hardly function if judicial councils were powerless to exercise powers of moral suasion or censure, where a judge is felt to be bringing discredit on the court through disability, infirmity, incompetence or misconduct.” Id. at 1509; see also Harry T. Edwards, Regulating Judicial Misconduct and Divining ‘Good Behavior’ for Federal Judges, 87 Mich. L.Rev. 765, 784 (1989) (concluding that “individual judges are subject to some measure of control by their peers with respect to behavior or infirmity that adversely affects the work of the court and that does not rise to the level of impeachable conduct”). In light of these precedents, the Court rejects Judge McBryde’s argument that judge-on-judge discipline is inherently unconstitutional. As the framers of the 1990 amendments to the Act recognized, judicial independence and judicial accountability “are partners in maintaining the respect and confidence necessary to the effectiveness of the Federal judiciary.” H. Rep. No. 101-512, at 8 (internal quotations omitted), reprinted in 1990 U.S.C.C.A.N. 6879, 6882. The Court concurs with Judge Gesell’s observation that “the Framers never intended that the independence of any one officeholder, including judges, be so absolute as to threaten the integrity and orderly functioning of that officeholder’s branch of government.” Hastings, 593 F.Supp. at 1379. In order to answer the question of whether the Act erodes judicial independence, the Court must consider both the independence of individual judges and the independence of the judiciary as an institution. See, e.g., Hastings II, 783 F.2d at 1509 (evaluating separation of powers challenge to the Act by balancing the pressure placed on individual judges against institutional values). Ultimately, Judge McBryde’s facial judicial independence challenge fails because the powers exercised by the Judicial Branch under the auspices of the Act are not incompatible with the central mission of that Branch. See Mistretta, 488 U.S. at 388, 109 S.Ct. 647. Rejecting a similar argument raised by Judge Hastings, the Eleventh Circuit wrote that the Act “does not ask judges to promote some interest lying outside the immediate concerns of the judicial branch, nor does their membership on investigating committees and judicial councils make them less impartial.” Hastings II, 783 F.2d at 1504 (contrasting judicial participation in addressing allegations of judicial misconduct with judicial participation in fighting organized crime). To the contrary, Hastings II found that “the investigating judges here are concerned solely with matters affecting the management and reputation of the judiciary itself.” Id. The most natural guardians of judicial independence are judges themselves, whose interests are most closely aligned with those of the subject judge. Judge Edwards’ commentary underscores this point: Judges cherish the principle of judicial independence. Every judge understands that judicial independence would be lost if individual judges were allowed to be dominated by the group. If one individual must forfeit his or her independence, a precedent is established that will threaten every member of the group. Judges will not tolerate this; thus, no member of the group is likely to discipline another without great caution.Overall, judges’ naturally empathetic and disapproving impulses will blunt each other, leaving them as the best people, from a practical standpoint, to carry out the judicial policing function. Edwards, Regulating Judicial Misconduct, 87 Mich. L.Rev. at 780. Inde