Public Remarks by Judge in Microsoft Ruling Stir Furor
The judge who ordered the breakup of Microsoft Corp. defended his controversial public comments about the case, even though critics say his remarks on the very day of the ruling reflect a personal animus against the company that could jeopardize his decision.
In an interview Thursday with the Los Angeles Times, a relaxed U.S. District Judge Thomas Penfield Jackson said he had no idea whether his comments to the press Wednesday might have a negative effect on a higher court’s consideration of the antitrust case. But he said he decided to talk with the media because of the enormous public interest in the case.
“Ordinarily I don’t” grant interviews, Jackson said Thursday, dressed in shirt sleeves and gesturing often in his chambers.
“But because of the extraordinary amount of attention given to this case . . . I thought it would be useful to give some sense as to who I am and what I have done. . . . I am not the Wizard of Oz in a black robe or some omniscient wise man. [But] there obviously are a lot of questions in the mind of the public.”
Critics were taken aback by Jackson’s remarks Wednesday to the Wall Street Journal, in which he dismissed Microsoft’s complaints that it was not given enough time to argue against a breakup. Jackson then quipped, “Were the Japanese allowed to propose the terms of their surrender?”
Jackson also explained in that first interview his reaction to Microsoft’s defense: “Untrue in one thing, untrue in everything.”
He added, “If someone lies to you once, how much else can you credit as the truth?”
Presumably, some judges have personal feelings that they allow to influence their findings, but they rarely comment on their thought process, particularly on the same day that they issue a final ruling in such a closely watched case. Experts said Thursday that such comments might be interpreted by a higher court as evidence that Jackson’s decision was tainted by his personal bias and not fully based on the rule of law.
Jackson’s remarks raised eyebrows among a number of experts, who said Jackson’s Wall Street Journal interview--together with his spartan 17-page legal opinion--will probably make it even more unlikely that the Supreme Court will take the case on an expedited basis.
“A lot of people don’t think judges are supposed to do these kinds of things,” said Robert H. Lande, a law professor at the University of Baltimore. “First, he issues an opinion less than 24 hours after Microsoft made its last filing. Then he gives out interviews to the press.”
Lande’s concerns about judicial prejudice--and about whether Microsoft got a fair hearing in Jackson’s court--were echoed by Microsoft Chairman Bill Gates.
In an interview on CBS’ “The Early Show,” Gates characterized Jackson’s order to break Microsoft into two companies as a rush to judgment and said: “The judge apparently formed those opinions even before this case began.”
Separately, Microsoft has filed an appeal seeking to suspend that part of Jackson’s order that would impose restrictions on its business dealings in 90 days.
Jackson’s criticism of Microsoft, and the public outcry over it, recalled a similar controversy involving Jackson when he blasted a Washington jury in 1990 for not throwing the book at former District of Columbia Mayor Marion Barry.
After jurors in his courtroom had acquitted Barry of misdemeanor cocaine possession charges, Jackson told a Harvard Law School audience that some of the jurors had ignored “overwhelming” evidence of Barry’s guilt.
However, many who had defended Jackson’s right to speak his mind in the past say that his latest comments are more worrisome and could hurt the government’s chances in the appeal phase of the Microsoft case.
“If he is going to reveal his thought process, he ought to do it in the formal documents he issues in deciding matters, not in interviews,” said William E. Kovacic, a George Washington University law professor. “I don’t suppose Jackson’s trying to liken Microsoft to the empire of Japan in the 1940s, . . . but that’s a careless remark. He’s using a very ill-considered metaphor that could undermine his case.”
In his interview with The Times on Thursday, Jackson reiterated his hope that the parties would try to reach a settlement.
He acknowledged, however, that he is uncertain what legal effect his public comments might have on appeal.
“I don’t know whether [public discussion] hurts my case before [the appeals court] or not,” Jackson said. “They do their job and I do mine. I have enormous respect for them. Most judges take comfort in realizing that the appeals courts will review their work.”
Jackson praised lawyers on both sides, calling the landmark dispute a “well-tried case.” But he kept returning to the theme that Microsoft was simply wrong in complaining about lack of time to argue its case.
“I do not think they were surprised” when he ended the proceedings last month, Jackson said. “They managed to pull out a 35-page offer of proof” soon after that decision, he said.
In addition to the government’s sweeping antitrust case, Microsoft is facing more than 140 private antitrust suits brought by consumers and rival firms.
Nevertheless, Justice Department antitrust chief Joel Klein said Thursday he remained open to returning to the negotiating table.
“I have said and believe that a settlement is always the preferred course in this kind of litigation,” Klein told reporters in Washington. “It’s in the interest of the company and it’s in the national interest to have Microsoft address, in a meaningful way, the competitive issues that animated the case.”
A Microsoft spokesman dismissed Klein’s settlement overture as rhetoric.
“We have always said that we would be interested in reaching a fair and reasonable settlement,” company spokesman Jim Cullinan said. But “Mr. Klein is simply posturing to suggest the government is interested in such an agreement because they are demanding that Microsoft accept all of its demands. We will not agree to breaking up Microsoft.”
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Times staff writer Robert L. Jackson contributed to this report.
