Defending Judge Jacksons Big Mouth

Within the legal community, Judge Thomas Penfield Jackson messed up for sure.

Within the legal community, Judge Thomas Penfield Jackson messed up for sure. He shot his mouth off, and now the U.S. Court of Appeals, with which the judge was annoyed for overturning his original injunction to stop Microsoft from tying Internet Explorer to Windows, has fired back. The 17 pages (the ruling as a whole comprised 125 pages) about his alleged judicial misconduct was tinged with meanness.

But you know something? Most of us dont live within the hidebound, clarity-challenged legal community. Most of us lead a simpler, blunter existence. If we talked the way legal decisions read, only Latin scholars would pay attention to whats being said.

Much of what Jackson said that he shouldnt have I agree with. Upon a close reading of the appeals court decision, one comes away with the impression those judges were repaying a debt owed to Jackson.

Like the judge, and as one who sat in his courtroom, I was exasperated with Microsofts evasiveness and its resentfulness that anyone would dare challenge the company. Remember Jim Allchins doctored demo in the courtroom to prove tearing IE out of Windows was ill-advised? Who can forget Bill Gates angry, taciturn performance in his deposition?

Frankly, I found what Jackson told reporters before entering his final judgment on June 7 last year refreshing. Who can disagree with the judges following assertions:

• Windows should be offered with IE at a higher price and without it at a lower price.

• Gates should have finished Harvard.

• Gates isnt "adept at business ethics."

Comparing Microsoft to drug traffickers stupid enough to conduct criminal activity over the phone was a bit much. And the part about whacking Microsoft on the head with a 2-by-4 as if to train a mule was over the top.

I sensed the judge was expressing conclusions he had reached after hearing the evidence. He embargoed the interviews from being published until his final judgment was made public.

He might have been flip, but the appeals court made no effort to determine exactly what he said, when he said it and why he gave the interviews.

It must be a judicial prerogative to simply say in the appeals court decision, and I paraphrase, "Hey, we wont know for sure if the judge really said these things."

Heres what could have been running through the judges mind.

He knew Microsoft would ultimately prevail, so he spouted off anyway.

He thought he was in the clear by embargoing the interviews. Or, he simply concluded, "Ah, the hell with it."

Left brain says the judge did not show good judgment in spouting off to the press. Chief prosecutor David Boies and his crew of attorneys general did a magnificent job trying the case, although, at times, they clearly had a friend in Jackson. It would be a shame to see all the effort wasted, along with all the taxpayer dollars.

For a federal judge, Jackson is a rare bird. Id love to know what hes thinking tonight. Chances are, we will.