The following editorial appeared in today's Washington Post:
Judge Thomas Penfield Jackson's recently published comments about the Microsoft litigation - over which he presided and still retains potential future jurisdiction - cross a line. In comments to journalist Ken Auletta, some of which appear in the New Yorker and some in the writer's new book on the case, the judge blasts Microsoft's general counsel, William Neukom, saying, "I don't think he's very smart, or at least I don't think he has any subtlety."
He describes the company's founder, Bill Gates, as a man with "a Napoleonic concept of himself" and says that he has come to distrust the company, whose officers "continue to deny they did anything wrong." He also attacks the judges of the U.S. Court of Appeals for the D.C. Circuit, who reversed an earlier Microsoft ruling of his and are now hearing the company's appeal. Judge Jackson says the appeals judges "made up" facts in the earlier case and tend to "embellish law with unnecessary, and in many cases superficial, scholarship." And he announces that he attempted to craft his judgment against the company so as to "confront" the judges there "with an established factual record" that they would find tough to reverse.
This isn't the first time Judge Jackson has spoken out about a pending case. His comments at Harvard Law School about Marion Barry's trial drew criticism from the court of appeals. Moreover, he has spoken publicly about the Microsoft case before, even saying that he felt the government was entitled to the remedy of its choice - breaking up the company - since he lacked the expertise to craft one himself. The judge's earlier remarks, in fact, are already at issue in the litigation.
Such remarks, even for those of us who agree that Microsoft broke the law, do not instill confidence in the judge's impartiality. He says his comments merely reflect opinions he drew as the case unfolded - opinions that easily could be inferred from his rulings. But disparaging the company, its chief lawyer and the judges reviewing his own work, the judge only raises questions about whether his judgments can be dispassionate should the case be remanded for further proceedings.