Pity poor Thomas Penfield Jackson, the federal judge who delivered Microsoft its most stinging setback in its entire corporate life. Now that the Supreme Court has declined to hear an appeal of the antitrust verdict, Microsoft's chances of emerging unscathed from its clash with the government are significantly enhanced.
That's because, as Salon reported more than a year and a half ago (in "Tipping the Antitrust Scales: How the right helped make the federal courts safe for Microsoft"), the court that will hear the appeal, the U.S. Court of Appeals for the D.C. Circuit, is considered by legal experts to be dominated by conservative Reagan-Bush appointees with a well-established antipathy to antitrust enforcement.
In fact, after a decades-long campaign by ultraconservative philanthropists who have aggressively funded a school of legal thought -- law and economics -- that is strongly opposed to any government intervention in the economy, the entire federal judiciary is thought by some critics to be predisposed toward weak antitrust enforcement. Groups like the Olin Foundation and the Sarah Mellon Scaife Foundation have funneled hundreds of thousands of dollars to wine and dine judges at fancy resorts and subject them to law-and-economics seminars. The goal has been to prepare for moments precisely like this one, as the most important antitrust trial in a generation lumbers to yet another extraordinarily critical juncture.
Federal judges are extremely sensitive to any suggestion that they are biased. But it's up to the Court of Appeals to prove to the general public that it is above suspicion. At every instance in which this appeals court has had a chance to rule on aspects of the Microsoft antitrust trial, it has ruled in favor of Microsoft. So pity poor Judge Jackson, and just try to imagine the glee filling the hallways of Microsoft's Redmond, Wash., headquarters today.