Judges may lean toward Microsoft

When Microsoft asked U.S. District Judge Thomas Penfield Jackson to reconsider his appointment of a computer law expert assigned to sift through technical evidence in the antitrust case brought by the Justice Department, the jurist flatly refused.

When the software giant made a nearly identical request to a federal appeals court, a three-judge panel assigned to the matter not only agreed to consider the issue, but also to immediately suspend the "special master" in the meantime.

Yesterday's one-page ruling from the U.S. Court of Appeals for the District of Columbia doesn't outline the judges' reasons for granting Microsoft's request, but its actions seem to speak volumes. In general, the appellate court's handling of the case so far appears to be consistent with its reputation as a panel of conservative judges who might be inclined to lend Microsoft a sympathetic ear.

The panel includes Laurence Silberman and Stephen Williams, both appointed by Ronald Reagan, and Raymond Randolph, an appointee of George Bush. All three have a great deal of government experience, working mostly for conservative causes.

Silberman worked in the Nixon and Ford administrations as both a deputy attorney general and as undersecretary of labor. In the 1970s, Randolph was an assistant to then-U.S. Solicitor General Robert Bork, now a fellow appeals court judge in Washington, and considered one of the most conservative members of that bench. Williams, meanwhile, has served as an assistant U.S. attorney and as an economics professor at the University of Colorado.

All three judges have established judicial philosophies that are skeptical of government regulation, said William Kovacic, a professor at George Mason School of Law. "If Microsoft could have gone down the list of the court's membership and picked sympathetic observers, they couldn't have done much better than this," Kovacic added.

William Baxter, a professor at Stanford Law School and the former head of the Justice Department's antitrust division, said yesterday's ruling was consistent with the judges' reputations.

"It sounds to me as if the court of appeals is saying, 'We're not going to toss a serious issue like this to a young chap. We're going to take a slow and orderly approach,'" said Baxter, who during his tenure at the Justice Department oversaw the breakup of AT&T.

In addition to their preferences for letting the marketplace settle business conflicts and for following established legal precedents, at least one of the judges has backed up Microsoft in the past. After U.S. District Judge Stanley Sporkin in 1995 threw out a consent decree being negotiated between Microsoft and the government because it was too favorable to the software giant, the matter was appealed and heard by a panel that included Silberman.

The panel eventually overturned Sporkin's order, noting the judge's "distrust of Microsoft's lawyers and his generally poor view of Microsoft's practices." That consent decree is at the center of the current dispute between the government and Microsoft.

The case stems from accusations the government made last October that Microsoft's licensing terms violated the consent decree, negotiated to settle an earlier court action. Jackson appointed visiting Harvard Law School professor Lawrence Lessig to study the case after ruling that it was not clear whether Microsoft's interpretation of the decree was correct.

Microsoft has argued that the designation of a private citizen to the case violates its constitutional rights. It also argues that Lessig, in particular, should be disqualified because email and other writings of his give the appearance that he is biased against the company.

Despite the appeals judges' appearances and their ruling yesterday, however, some legal observers warn that it would be a mistake to assume they are bound to side with Microsoft on core issues in the case, such as Microsoft's separate appeal of a preliminary injunction requiring it to separate its Internet browser from its operating system.

For one thing, district judges generally are given broad discretion to rule as they see fit, meaning appeals courts give them the benefit of the doubt when reviewing their decisions. And for another, the issues surrounding the special master are far different from the larger antitrust principles at the heart of the case.

"It's always dangerous to figure out what a court's going to do," said Joe Sims, a former antitrust attorney with the Justice Department now at Jones, Day, Reavis & Pogue. The panel "obviously thinks there's a serious issue about the propriety of leaving this guy in as special master, but I don't think you can take it any further than that."