Apparently, the case can be sent back to the District Court as soon as this Friday, August 10th unless Microsoft petitions the Supreme Court. I hope Microsoft petitions the Supreme Court now. Time is running out. The AC court denied the DOJs' attempt to rush the case back to the District Court. Microsoft would be stupid not to avail itself of the opportunity to exhaust every possible appeal. I wish Bill Gates and Microsoft would be honest about how damaging the Appeals Court decision was, especially if they expect any public support. If Microsoft announces they are petitioning the Supreme Court this week, the media will have a heyday claiming Microsoft is stalling again “just” to prevent delays or changes to Windows XP. And it will be partly Microsoft's fault; after all, Microsoft is still claiming that the Appeal’s Court decision of June 28 was a victory for Microsoft. Some victory. Right now,
Microsoft didn’t learn much from the Appeals Court decision. The judges repeated throughout their decision: ”a flaw that infects many of the company’s (Microsoft’s) claims: the company fails to challenge the District Court’s factual findings, or to argue that these findings do not support the court’s conclusions.” Microsoft only challenged about 12 out of 412 Findings of Fact. Microsoft’s petition for a rehearing to the Appeals Court on such a narrow issue of commingling code fails to challenge much. MSFT needs lawyers with more expertise in antitrust and they don’t have much time. I’m not a lawyer, just my opinion. Phil Beck, the DOJ replacement for David Boise, is a great lawyer. Ben Ginsburg would be a good match for Phil Beck. They both defended Bush in the Bush vs Gore election case. Even if Ginsberg lost, at least he would provide some comedic relief.
IMO, the AC judges erred in their treatment of Jackson’s judicial misconduct. They should have held evidentiary hearings to establish the facts or they should have appointed a Judicial Council to investigate the details thoroughly - this is standard procedure in cases where complaints of judicial misconduct are accepted. The AC judges thought Jackson’s ex parte contacts and his comments and embargo were “terrible” and they crossed the line. If the ex parte issue was such a grievous violation, why didn’t they remand the issue to determine what actually happened? There were disputed facts or questions about when the ex parte contacts started; exactly what was said; to whom. The judges arbitrarily decided when his comments were made; and that decision was crucial in claiming it was not necessary to vacate the Findings of Fact and Conclusion of Law. Even if their petition is denied; it would be on the record when it goes to the Supreme Court; assuming Microsoft appeals to the SC.
Microsoft should at least petition the Supreme Court now to review the Appeals Court decision on Jackson’s judicial misconduct. there are enough legal questions involved in their action. Or they should petition the Judicial Conference of the United States which is the highest body to review cases of judicial misconduct. Justice Scalia wrote the Liteky decision. I would think the Supreme Court would be interested in reviewing the Appeals Court actions towards Judge Jackson’s judicial misconduct.. It is possible the SC would disagree, and vacate the entire decision; including the Findings of Fact. Microsoft should petition the SC now; at least for that issue; but for other issues as well. |
