Politics and the courts – will MS get an easier appeal ride?

MS on Trial Harry Edwards, the chief judge of the DC Circuit, went on the record last October in the Legal Times to express his disdain that a judge's politics should influence a ruling. He lashed the Washington Post for suggesting that "Microsoft's fate could hinge on which judges hear appeal" and characterising "the impending appellate decision as a matter of dumb luck', judicial lotto', and blue-bucket bingo'.

This clearly implied that partisan leanings would outweigh any other considerations - such as, say, the facts of the case and the governing law - in the court's ruling". Judge Edwards found the WP article "distressing, and truly offensive". He continued: "If I had Microsoft to decide tomorrow, I haven't the faintest idea how I would vote, because I have yet to examine the record, consider the trial court's findings, or research the law." Well, if even for a brief period, he has the case.

The Court of Appeals Order yesterday was a very strange one, and issued with uncharacteristic speed. It is clear that there was a desire by the court to hear the case "of exceptional importance" en banc (all of them), but there were problems with this. Three judges had to recuse themselves (Silberman, Henderson and Garland), most likely because they held Microsoft stock or had some other disqualifying impediment. Judge Wald, who had partly dissented from the Windows/IE integration appeal, retired last November, leaving the court down to ten judges instead of its authorised complement of 12 (the Senate has not yet considered confirming a 12th judge). The consequence was that the Court ordered sua sponte (off its own bat, without any consideration of evidence) that the remaining seven judges would make up the court sitting en banc.

The Court of Appeals did not rule on the stay request, but seemed intent on staking its claim to review the case. This may influence the Supreme Court, although it could also be that the Supremes would like to have a stab at it first. They certainly have the power to do so, despite the action of the DC Circuit.

Microsoft has shown cocky faith in getting a favourable outcome in the Court of Appeals, so Chief Judge Edwards' statement about judicial independence is reassuring. With this en banc sitting, there is less possibility of a bizarre decision from a panel, as happened previously to criticism by Judge Jackson in his conclusions of law.

It remains to be seen whether Microsoft's perhaps over-confident statements about what the Court of Appeals would do have also distressed the court, as had media assumptions about its partiality. If the Supremes leave some or all of the appeal to the Court of Appeals, its every move in the case will receive more media scrutiny than it has ever previously experienced. Nonetheless, whatever the court decides, there is sure to be a subsequent appeal to the Supremes, and Microsoft would have been able to delay any evil day. The key issue for the moment is whether Microsoft will get a stay on the conduct remedies: if it does, there will be more losers than winners. ®