The US Court of Appeals judges have unequivocaly condemned judge Thomas Penfield Jackson for his out-of-court comments regarding the Microsoft anti-trust case.
Chief Judge Harry Edwards said: "I don't discuss cases with my best friends. That's the way we operate. We're not supposed to do that."
His comments came as the Washington-based appeals court completed two days of oral arguments on Microsoft's appeal against Jackson's ruling last spring that the software vendor violated antitrust law and should be split into two separate companies.
Break-up overrule The appeals court judges have thrown tough questions at both sides on the matter, but the Department of Justice has been posed the most challenges. As the hearing ended it appeared that Jackson's break-up order may not survive the appeals process.
The appeals court judges, who began their proceedings in the case in Autumn, were obviously sympathetic to Microsoft's contention that comments made by Jackson in speeches and interviews since the trial ended last year were out of bounds and constituted possible violations of the judicial code of ethics.
The DOJ's claim that Microsoft tried to monopolize the Web browser market is also facing a challenge. The evidence for that charge depends heavily on an infamous mid-1995 meeting between executives from Microsoft and Netscape Communications, at which it was alleged that Microsoft essentially attempted to reach an agreement limiting Netscape's future development efforts for the soon-to-arrive Windows 95 operating system.
Navigator safe For Microsoft to have succeeded, Tatel argued, Netscape Navigator would have had to fail as a browser, Microsoft's Internet Explorer would have had to take over the market and there would have had to be barriers to entry against other vendors. "I don't see anything in the record at all that would suggest there is a dangerous probability of all those three things happening under those circumstances," he said.
David Frederick, an attorney representing the DOJ and 19 states that joined in the suit against Microsoft, argued that the company was attempting to eliminate Netscape as a potential competitive threat.
But Edwards challenged the government's contention that Web browsers are a separate market from the operating system business, accusing the DOJ of using "sleight of hand" in making its claim. "It's a hard hill you have to climb," Edwards said to Frederick at one point.
Microsoft attorney Steven Holley was given almost free rein to outline the company's criticism of the break-up order and a decision by the judge not to hold a special hearing on the matter before approving the government's request that Microsoft be split in two.