Of the judges that could take the case, only one is a Republican appointee: Royce Lamberth, who joined the court in 1987. The rest were appointed by Democrats, including Senior Judge William Benson Bryant, who was selected by Lyndon Baines Johnson, and Senior Judge John Garrett Penn, who was picked by Jimmy Carter.
Several legal experts declined to predict how the assignment of a particular judge might influence the outcome of the case, noting that Jackson himself was a conservative Ronald Reagan appointee--a resume that offered few hints that he would order a Microsoft breakup. That decision was reversed Thursday.
Although Jackson's shadow has loomed large over the trial so far, legal analysts agreed that the pending appointment promises to have considerably less influence on the case. The appeals court remanded the case to the trial court with extensive instructions, for example, letting stand Jackson's findings of fact while ordering the lower court to reconsider whether a breakup is appropriate.
"I don't think this is a case where ideology matters a whole lot," said Michael Lazerwitz, an attorney in the Washington office of Cleary Gottlieb Steen & Hamilton.
In a ruling issued Thursday, the U.S. Court of Appeals for the District of Columbia Circuit set aside Jackson's breakup of the company and ordered him disqualified from overseeing the case because he refused to allow Microsoft an evidentiary hearing and because of private conversations with reporters about the case that created the appearance of bias.
"Rather than manifesting neutrality and impartiality, the reports of the interviews with the district judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write," the judges wrote in their opinion.
Still, the judges wrote, that was enough to disqualify Jackson from the case--retroactive to his issue of the breakup order--and require the assignment of a new judge.
Once chosen, a prospective appointee can decide to either take the case or recuse him or herself for several reasons, including financial ties to the company, personal ties to the parties, or an already heavy caseload. Once the clerk's office receives the reassignment notice, it takes just a day to assign a judge.