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Arguing a case in the presence of Justice Marshall McComb can be an unsettling experience. "He often keeps his eyes closed, and sometimes he walks out in the middle of an argument," says one attorney. "I can't tell when the man is asleep or when he is not," says another. "He doesn't give any indication he's heard what you've said."

McComb's idiosyncratic ways are perhaps understandable, since he is 82 years old. The problem is that he is one of seven judges on the California Supreme Court. Removing a judge is difficult, removing a Supreme Court justice almost impossible. But complaints about McComb's performance have nonetheless led to the extraordinary threat (unlikely to be carried out) of his going to jail next week.

McComb, who has said privately that lights bother his eyes, has been a judge for 49 years and is apparently well enough off to retire. He may be resisting that step because he likes filing his conservative dissents to the court's generally liberal opinions. But his judicial philosophy is not why he was denounced to the state's commission for judicial qualifications by a number of so far unidentified lawyers. The charge: "Willful and persistent failure to perform his duties [and] having a disability that seriously interferes with the performance of his duties." Aside from falling asleep, say his critics, he neither actively participates with his colleagues in their weekly discussion of cases nor writes his share of the court's opinions. The accusations got a surprising public boost when Chief Justice Donald Wright was quoted as saying of McComb, "He's on the bench about five minutes or so; then he falls asleep. I used to nudge him and wake him up a little bit, but he comes to with a start and makes the whole courtroom aware of it." One of McComb's associates argues that the charges are greatly exaggerated. Says he: "The whole thing is ridiculous."

Ridiculous or not, the commission subpoenaed McComb to appear and give a deposition. The judge twice ignored the order. The whole controversy, he says, is "not interesting to me." Superior Court Judge Byron Arnold, 72, called a hearing on the matter, and McComb sent his lawyers but did not show up himself. Arnold thereupon sentenced him to prison for contempt, suspending the sentence only until Nov. 8 so that McComb can appeal.

McComb's lawyers have raised a variety of defenses, and the situation is a long way from being resolved. But there are already elements that trouble California lawyers. Says one: "To my way of thinking, if a judge doesn't show up for a contempt hearing against him and allows a contempt ruling against him, then why shouldn't any punk on the street violate the law?"

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