During the Microsoft trial that eventually ended up in an order for the company to be broken up, a lot of anti-Microsoft folks (I’m thinking specifically of the wonderful folks at Slashdot) were thrilled that Judge Thomas Penfield Jackson understood their anti-MS arguments so well and would stick it to the company.
I felt like a distinct minority arguing that Jackson was the best thing that ever happened to Microsoft. He was so clearly biased in his view of Microsoft and so arbitrary in his rulings and decisions, that he pretty much guaranteed that his ruling against the company would never stand up. Biased judges are nothing new, but usually they try to be a bit more discrete.
Wired summarizes the appellate court’s outrage at Jackson’s behavior with chief justice Harry Edwards saying, “We don’t run off our mouths in a pejorative way…. The system would be a shambles if all judges did that. Good heavens, is that what judges do? They take preferred reporters in?” Edwards went so far as to ask whether or not Jackson’s conduct might have violated the oath he took upon becoming a federal judge.
A lot of anti-MS commentators made much of the fact that as the finder of fact, the appellate court would probably be unwilling to overturn Jackson’s finding that Microsoft had attempted to use its Windows dominance to harm Netscape. But as Judge David Sentelle pointed out during the recent appellate hearing, that assumes that the judge is a neutral fact finder and Judge Jackson was so obviously not neutral, “Why is the finder of fact entitled to deference anymore?”
And once you get beyond Penfield’s longstanding antipathy for Microsoft, the trial court found plenty of evidence that Microsoft engaged in some pretty unethical business practices (which should shock no one) but surprisingly little evidence that Microsoft had illegally leveraged its OS dominance to drive out Netscape (part of the problem being that Netscape did a pretty good job of self-destructing without any help from Gates and company).