MS appeals to US Supreme Court

'That fat bastard shanked us'

Microsoft is trying to convince the US Supreme Court that it got shanked so badly by Judge Thomas Penfield Jackson that it deserves an entirely new trial.

The Court of Appeals did recognize Jackson's bad behavior, but also let some of his findings of fact stand. MS is arguing that Jackson did such a poor job on the bench that even the decisions he got right should be thrown out -- baby-with-bathwater-wise.

In its request for a Supreme Court writ of certiorari to review the decision by the appellate court, MS concentrates on Jackson's unfitness to preside at trial, and figures the appeals court failed to give it the weight it deserved.

"It is difficult to imagine a civil case that will leave a more indelible mark on the public's perception of the administration of justice than this case.... The threat that the judge's misconduct poses to the public's perception of judges and the process of judging is palpable."

Thus the mere appearance of impropriety should suffice to overturn both the district court and the appeals court, and win Microsoft an entirely new trial with a new judge. "What matters is not the reality of bias or prejudice but its appearance," the company argues.

MS also appeals to a previous Supreme Court ruling in Liljeberg v. Health Services Acquisition Corp, reminding the Justices of their own words: "This Court stated that 'in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider [i] the risk of injustice to the parties in the particular case, [ii] the risk that the denial of relief will produce injustice in other cases, and [iii] the risk of undermining the public’s confidence in the judicial process.' All three factors counsel strongly in favor of vacatur of the findings of fact and conclusions of law."

"Failure to vacate these rulings will result in manifest injustice to Microsoft," the company brief warns.

Because the appeals court ruled unanimously, we're not terribly confident in MS' chances of getting the Supremes involved. However, we can't dismiss the possibility out of hand.

We naturally look forward to reading the DoJ's counter-brief as soon as it's published. ®

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