Judge Jackson Unplugged

The D.C. Court of Appeals tears a strip off Thomas Penfield Jackson

Mr. Kopel is the research director at the Independence Institute & author of Antitrust After Microsoft.

March 2, 2001 10:35 a.m., National Review Online. More by Kopel on the Microsoft antitrust case.

Another good day in court for Microsoft." The Microsoft PR staff offered that line day after day during the antitrust trial. The press never believed them. Turning David Boies's spin of the day into the story of the day, most of the press went out of their way to ensure that Microsoft never had a good day.

Tuesday, Microsoft had a very good day.

To listen to the Microsoft appeal's oral arguments on the web, I had to use the RealPlayer made by one of Microsoft's competitors in Internet music and audio. Microsoft has been giving its Windows Media Player away for free for many years, and WMP is bundled with the Windows operating system. Microsoft's operating-system "monopoly" doesn't give Microsoft the power to crush competitors like Real Networks, which (unlike Netscape) work hard to continually improve their product.

Like the media has always said, the case always was, and still is, about hubris. It is proof that no one is above the law. Yet it seems unlikely, even now, that the lawbreaker in question will admit to even the slightest misconduct. Judge Jackson shows no remorse.

For all the motes that Judge Jackson found in Bill Gates's eye, there are many more planks in Judge Jackson's.

Microsoft's "arrogance" was really naiveté. Its executives thought they could just run a big business without having to buy into the protection racket known as campaign contribution and lobbying. They thought that their business practices were legitimate and lawful, since those practices were just the same hardball tactics used by their competitors; almost every act that Microsoft has been accused of has also been perpetrated by members of the anti-Microsoft NOISE coalition — Netscape, Oracle, IBM, Sun, and "Everyone Else" (especially Novell). All of these practices are lawful, except when a business is labeled a "monopoly." When Judge Jackson slapped that label on Microsoft in 1999, Microsoft's actions as far back as 1994 were deemed retroactively illegal. Yet, after the two days of hearings in the Microsoft appeal, it's not Microsoft's that's in trouble with the D.C. Circuit, but Judge Jackson.

John Roberts, a private attorney representing the 18 states (plus the District of Columbia) that have sued Microsoft, did not even attempt to defend Judge Jackson's conduct. Even so, the D.C. Circuit judges assaulted him furiously, with Chief Judge Harry Edwards taking the lead. (Edwards is a highly respected liberal, known for very careful work; he will almost certainly have a law school named after him one day.) The judges knew, and then John Roberts knew, that the judges weren't angry with Roberts. Their fury was directed at none other than trial judge Thomas Penfield Jackson.

Jackson made an ass of the law, and of himself.

From the first days of the trial, Judge Jackson had been giving Microsoft ammunition for use on appeal. Courtroom sketch artists showed him dozing through witness testimony. But Jackson's ten hours of interviews for Ken Auletta's book, World War 3.0, were a godsend for Microsoft. While the trial was in progress, Jackson was telling Auletta that Microsoft and its employees were like a murderous drug gang, the Japanese military dictatorship that lost World War II, even Napoleon. These interviews provided the smoking gun for what many people familiar with federal courts in Washington have long believed — that Judge Jackson is a self-important, arrogant, and not particularly competent figure who doesn't feel bound by the rules that other judges must obey.

In these interviews, Jackson did not simply wade into a gray area of judicial ethics. He jumped far over the line. "Beyond the pale," in Chief Judge Edwards's words. Judge Edwards suggested that the comments violated Jackson's judicial oath of office.

Not only did Jackson display obvious antipathy for Microsoft, he expressed a strong antipathy for the D.C. Court of Appeals itself. He insulted the judges' intelligence and legal acumen — knowing that he was speaking on the record, and that his comments would be read by the appellate judges.

Jackson went on to explain that he felt "wounded" when the D.C. Circuit reversed him in a 1997-98 case involving Microsoft. There, the D.C. Circuit had ruled that Jackson had seriously misread the terms of a consent decree between Microsoft and the Department of Justice. Indeed, Jackson was so obviously "wounded" by being reversed by the D.C. Circuit that his findings of fact in the current Microsoft case were a pointed challenge to the Circuit. In the consent-decree case, the D.C. Circuit had written that judges should not put a "thumb on the scales" of computer innovation. Judge Jackson took that metaphor and threw it back in the D.C. Circuit's face; he wrote that Microsoft had put its "thumb on the scales" of competitive innovation.

Jackson might have expected to get away with his legal braggadocio because he thought the Supreme Court would take the case directly, bypassing the federal Court of Appeals. But the Supreme Court refused to hear the case, and sent it to the Court of Appeals. While the Supreme Court, as a rule, does not offer any reasons for refusing to hear particular cases, it is not unreasonable to believe that the Supreme Court Justices were familiar with Jackson's reputation and thus wanted to steer clear of one his cases. Jackson certainly did not help his cause when he set forth on a public-speaking tour about the Microsoft case, even while his attempt to gain expedited Supreme Court review was pending before the Supreme Court.

The Supreme Court was probably also following its normal practice of not taking cases which don't have a well-developed factual record. Jackson had concluded the trial by ordering Microsoft to be broken up, yet Jackson did not allow even a single day of hearings or the cross-examination of a single witness to explore the putative effect of that remedy. The extreme absence of evidence in support of the remedy was matched only by the extreme nature of the remedy. Jackson was the only judge in American history who had ordered the antitrust break-up of a non-predatory company, i.e., one that had not grown by dint of mergers and acquisitions.

As the oral arguments on Tuesday ably demonstrated, Judge Jackson had fallen well below the standards of judicial competence.

David Frederick for the Department of Justice started his oral argument on Tuesday by acknowledging the "lack of clarity" in Jackson's findings of fact concerning a 1995 meeting between Microsoft and Netscape.

During oral argument, Chief Judge Edwards zeroed in on Jackson's shifting definition of what market Microsoft was supposedly attempting to monopolize: "[T]he District Court has flipped back and forth on the definition of the relevant market. Those findings are absolutely unclear… [T]here are sleights of hand going on here… The District Court made no appropriate finding of the relevant market. That's the confusion on the district court's findings. That's what you're running from."

Judge Jackson had made a finding of fact predicting that AOL (which purchased Netscape during the trial) would continue to use Microsoft's Internet Explorer as the AOL web browser. But, in actuality, as the Court of Appeals pointed out, the new AOL 6.0 pushes AOL's customers (one-third of all U.S. web users) onto the Netscape browser.

In June 2000, when Judge Jackson ordered the Microsoft break-up and imposed restrictions on Microsoft's software design — but refused to accept any evidence regarding those remedies — Judge Jackson repeated the same type of error that he had made in 1997 during the Microsoft consent-decree case. Then, in December 1997, Jackson imposed a preliminary injunction without the proper notice and opportunity for a hearing which is required by due process and by the Federal Rules of Civil Procedure. The remedy was technically absurd; in 1997, literal compliance with Jackson's injunction required Microsoft to sell a version of Windows 95 that wouldn't work. (Jackson then got very angry when Microsoft did exactly what he had ordered.) On Tuesday, the D.C. Circuit offered no objections to Microsoft attorney Steve Holley's explanation of how the Jackson restrictions on software would effectively make it impossible to improve future versions of Windows.

The D.C. Circuit reversed trial judge Jackson in 1998, and it is very plainly going to do so again this year.

A thoroughly slanted story in the Los Angeles Times fretted at the collapse of the government's case, worrying that Tuesday's events would make Microsoft reluctant to reach a settlement with the federal government. In fact, as Ken Auletta's book details, Microsoft actually signed an agreement last year with the Department of Justice, which would have ended the case; but the state-attorneys general balked.

Most of the media, though, reported the obvious: The possibility that Microsoft will be broken up is nil. The Court of Appeals believes that Judge Jackson has done a miserable job, and will give almost nothing Jackson has done the slightest deference. The question now is whether Microsoft will win a total victory on appeal, or whether the D.C. Circuit will throw the DOJ a large enough branch on which it could limp back into a new federal district court (certainly not Jackson's).

Then, I predict, the Bush/Ashcroft/James team will settle the case with Microsoft. Microsoft will agree to some minor restrictions on its business practices (e.g., allowing computer manufacturers more flexibility to alter the Windows start-up screen), but will not have to limit its software design.

The state-attorneys general will probably try to continue the case, but they won't have David Boies (who isn't looking so smart these days, anyway), nor will they have the vast resources of the Department of Justice. It will take some time for the states to finish a second trial phase in which a federal judge would do what Jackson failed to do the first time. Then, the case would go back to the D.C. Circuit Court of Appeals. And by then, the case will be an anachronism — as irrelevant to the real world as an antitrust case against Ford Motor Company over the 1962 country-sedan station wagon.

The written opinion in United States v. Microsoft that the D.C. Circuit will issue, perhaps this summer, will very likely land in the law books. The opinion may not show up in the antitrust textbooks, however, because much of what the opinion will have to say will be an explanation of why the trial judge failed to amass a proper factual record. And how the court imposed an extreme, punitive break-up without following proper procedures. The D.C. Court may issue more of a civil-procedure opinion than an antitrust opinion.

But the place where United States v. Microsoft is sure to endure for the ages is in Legal Ethics textbooks. The scathing denunciation of Judge Jackson which the D.C. Circuit will write — Chief Judge Edwards may well write for a unanimous court — will be used by generations of law professors to teach their students how judges should not behave.

The Microsoft case not only made Judge Jackson famous for a couple years, it will continue to make him a famous judge for decades to come — long after the phrase "web browser" has become archaic language. But Jackson will not be famous in the role he presumed for himself, as the antitrust Solomon who cut Microsoft in half. Rather, he will literally become the textbook example of a bad judge.  

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