It's Still Alive!

Have some sympathy for John Roberts and David Frederick. They're attorneys representing the government in Microsoft's appeal of the most famous antitrust trial since AT&T. Last week their task was to defend the actions of Thomas Penfield Jackson, the district judge who last year ordered that the Redmond software behemoth be split in two. Jackson provoked the ire of the U.S. Court of Appeals for the Washington, D.C., circuit in so many ways that oral arguments seemed at times like the judicial version of a smackdown, with Roberts and Frederick taking the drubbing in Jackson's stead. So after two days of courtroom back-and-forth, the breakup of Microsoft now looks about as likely as the return of Atari.

Jackson ran a well-organized trial, but he left a few rough edges. He arrived at his Solomonic solution without hearing either side air its views of appropriate punishment (on this subject Frederick took a blistering 89 questions in about half an hour). Judge David Sentelle got Frederick to concede that Jackson hadn't defined well enough the markets in question (Web browsers and operating systems). And Jackson's assertion that Microsoft had illegally "tied" its browser to Windows flouted a 1998 opinion issued by this same appellate court.

The court got hottest over a series of speeches and interviews Jackson gave about the trial. Microsoft lawyer Richard Urowsky argued that Jackson's comments conveyed the appearance of bias. Chief Judge Harry Edwards apparently agreed: "There are some that might suggest it violates the whole oath of office," he said. The appeals judges have slapped Jackson before: in 1991, for a speech he gave about the trial of D.C. mayor Marion Barry, which he presided over. And regarding this case, Jackson told author Ken Auletta that the court of appeals was "supercilious" and had "made up about 90 percent of the facts on their own," among other potshots. Last week the judges seemed to be saying that Jackson's indis-cretions--combined with his tendency not to cite the record in his findings of fact--might have given them a legal basis to overturn his decision.

So what happens next? Microsoft could possibly win it all. "You can certainly imagine a sequence of events that leads to the destruction of the whole case," says law professor William Kovacic of George Washington University. More likely, though, the appeals court will overturn some part of Jackson's decision, maybe tying, or attempted monopolization of the browser market. Even if the government's key monopoly-maintenance claim holds, that would countermand the breakup order and send the case back to some other judge for a partial do-over. Or it could go in the other direction, up to the Supreme Court. And if Roberts and Frederick enjoyed the ministrations of the court of appeals, they'll love the Supremes.