"Microsoft judge makes prosecutors nervous
By Peter Spiegel
people.ft.com
As Justice Department lawyers emerged, battered, from two days of grilling in a federal appeals court over the antitrust case against Microsoft, one member of the seven-judge panel probably weighed heaviest on their minds: Chief Judge Harry T. Edwards.
A Democrat appointed to the court in 1980 by President Jimmy Carter, Judge Edwards was widely assumed to be sympathetic to the government's case, leaving the department's lawyers to concentrate on picking off one of the four Republican judges in order to get the trial judge's break-up order upheld.
But far from being sympathetic, Judge Edwards emerged as arguably the most adamant critic of trial judge Thomas Penfield Jackson and his earlier ruling in the case, leaving the government with the prospect of an overwhelming reversal in the coming weeks.
"That has to be profoundly disturbing to the government," said William Kovacic, an antitrust scholar, of Judge Edwards' stance.
"The government has to walk away thinking: We could lose 5-to-2 on any number of issues."
The 60-year-old African-American's departure from the party line should not have come as a big surprise. In 1984, he dismissed a landmark antitrust suit against AT&T brought by Southern Pacific Communications, the original owner of Sprint. Microsoft clearly noticed: it cited Judge Edwards' 1984 decision liberally in its briefs before the court.
Judge Edwards has stated publicly his belief that it is impossible to pigeonhole appellate judges simply based on their party affiliation or which president appointed them.
"My greatest frustration over the years has been in attempting to debunk the unfounded suggestions in the media and among some scholars that judicial decision-making is largely influenced by a judge's ideological preferences," he told the Legal Times in 1999.
Part of Judge Edwards' vehemence during oral arguments this week could relate to his rocky history with Judge Jackson, legal scholars speculate. In 1991, Judge Edwards delivered a stinging rebuke to the district court judge for publicly criticising the jury in the cocaine trial of former Washington mayor Marion Barry. Judge Jackson had presided over that trial.
Judge Edwards' disapproval was eerily similar to his stance on Tuesday, when he again went after Judge Jackson for his comments to journalists about the Microsoft trial. Neither the government nor Microsoft proposed discussing the comments during oral arguments, but the court unexpectedly added an hour-long session on the issue. "If you had to guess who decided to put that on the public agenda, I think his identity is pretty clear now," said Mr Kovacic.
But any personal animus between Judges Edwards and Jackson may prove beside the point.
Judge Edwards was equally critical of the three main pillars of the government's case - that Microsoft tried to maintain a monopoly in operating systems, that it illegally tied its browser to Windows, and that it tried to monopolise the browser market - as he was of Judge Jackson's "extrajudicial statements". If he is joined in that opinion by any three of the four Republican judges,the government's case could crumble." |
