About 15 months after the Appeals Court for the D.C. Circuit rebuked U.S. District Judge Thomas Penfield Jackson for talking to the media in the Microsoft antitrust case, Jackson has formally filed his rebuttal.
Jackson's venue of choice to file his reply brief is, naturally, the court of public opinion, and specifically the local trade paper, Legal Times, which headlined his commentary, "Don't Gag the Judges; It makes no sense to keep the judiciary silent."
While the word "Microsoft" never appears in Jackson's commentary, the context is inescapable. Jackson's article cannot be read without considering, preferably side by side, the decision by the appeals court, which saved its harshest language to criticize Jackson's interviews during and after the trial.
Ironically, the appeals court reaffirmed the core of Jackson's work, which found in United States of America v. Microsoft Corp. that the software giant had illegally abused its monopoly position to undermine competition in the software marketplace. The court in late June last year also threw out his breakup order, sent the case to a new judge and sternly chastised Jackson for "deliberate, repeated, egregious, and flagrant" violations of ethical canons regarding impartiality and prohibiting ex parte communications on matters pending before judges.
Jackson's article begins broadly enough, with a compelling argument about why judges should not hide behind a cloak of secrecy.
"Our life tenure is all the more reason for us to be able to communicate informally on occasion with a public that must live with our decisions, yet can never vote us out of office," Jackson wrote. "One convention of federal judicial life to which I have never been fully reconciled is the notion that judges shouldn't ever comment publicly about their cases -- period."
But, quickly, his true audience here becomes pretty obvious. The appeals court had said it was mightily miffed that "Jackson had been giving secret interviews to select reporters before entering final judgment -- in some instances long before." In the interviews, Jackson had variously compared Microsoft to drug dealers, gangland murderers and the infamous Newton Street Crew, which terrorized a District neighborhood. "The Microsoft case was 'pending' during every one of the District Judge's meetings with reporters," the judges wrote.
Jackson gave his explanation of his view of the judicial canon admonishing judges to "avoid public comment on the merits of a pending or impending action."
The judge wrote, "I have considered the canon to be simply a rule of prudence, i.e., don't say anything for public consumption, on or off the bench, that might sound prematurely judgmental or cast doubt upon the essential fairness of the proceedings."
Jackson acknowledges that "many judges -- perhaps most -- believe the canon imposes a virtual code of omerta [silence] forbidding any public commentary while a case remains unfinished in any respect, quite possibly forever. . . . The ostensible reason is that anything said informally, but publicly, about a case must perforce detract from the court's 'appearance of impartiality.' "
"So interpreted, the canon represents a variant of that dubious maxim of leadership: Never apologize; never explain," Jackson said. "It also suggests that the judiciary is more concerned with appearances than with actuality."
Turning back to our appeals court ruling, the appellate judges note that the judicial code and 28 U.S.C. subsection 455(a) require judges to recuse themselves when their impartiality might reasonably be questioned. The appellate judges said that likely was the case, for example, when Jackson, in explaining his order to break up Microsoft, told a reporter a joke about a trainer who slaps a mule with a two-by-four to get its attention.
"His crude characterizations of Microsoft, his frequent denigrations of Bill Gates, his mule trainer analogy as a reason for his remedy -- all of these remarks and others might not have given rise to a violation of the Canons or of [subsection] 455(a) had he uttered them from the bench," the court said. "But then Microsoft would have had an opportunity to object, perhaps even to persuade, and the Judge would have made a record for review on appeal."
To that, Jackson replied in his editorial, "The distinction between 'judicial' speech and proscribed 'extrajudicial' speech is unrealistic. It conflates the concept of unofficial commentary and personal prejudice, which do not always equate, and draws the line between the permissible and the impermissible on the basis of whether the judge speaks ex cathedra [by virtue of one's position] or simply as a knowledgeable participant in the adjudicative process."
Jackson calls for "more sensible rules" regarding when a judge should speak out. "I know of no good reason why a judge who has made a decision, in a case of obvious interest and concern to many people, should not at least be willing, if not expected, to respond to legitimate inquiries about it from responsible interlocutors, whether they are lawyers, academics, students, journalists, historians or the local garden club."
The appeals court essentially said that Jackson was giving such speeches and interviews to aggrandize himself.
"The reports of the interviews with the District Judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write," the court said. His comments, the court said, raise a question of whether he was a "publicity-seeking judge" whose rulings also were designed to "consciously or subconsciously seek the publicity-maximizing outcome."
Jackson's essay suggests he took the court's comments about his motives as an ad hominem attack. "As a rule, judges should not speak ill of other judges personally, whether on or off the bench," Jackson concluded his essay. "Personal attacks on judges by other judges also undermine respect for and confidence in the judiciary."
Jackson did not return a phone call seeking comment.
Ego, Sacrificed
When Edward P. "Ted" Henneberry of Howrey Simon Arnold & WhiteLLP advocates for a client, he wields all the weapons at his disposal, even if one slashes his own pride. And, in the case of his work for the National Association of Broadcasters, he dealt himself a real zinger.
The NAB opposes the merger of EchoStar Communications Corp. and DirecTV Inc., a division of General Motors Corp.'s Hughes Electronics Corp., because it would create a monopoly for the satellite TV market. The broadcasters worry that without true competition, a monopolistic satellite TV company would be less inclined to offer customers local broadcast stations.
In citing authorities in the case, Henneberry referred to Federal Trade Commission v. H.J. Heinz Co., the 2001 case in the Court of Appeals for the District of Columbia that stopped Heinz from buying Beech- Nut Nutrition Corp. and creating a duopoly (with Gerber Products Co.) for baby food sold in cans and jars.
Guess which antitrust lawyer lost the Heinz case. Yep. Henneberry.
"There were a lot of smiles around the office," Henneberry said. His colleagues at Howrey asked, "Are you really putting that in?" And Henneberry replied, "Well, that's the law. But, I can honestly tell you, it hurt putting that footnote in. It really hurt."
It doesn't look like it will hurt much longer. By all most accounts, the Justice Department's antitrust division -- which is soon to be rudderless now that Charles A. James is leaving for ChevronTexaco Corp. after a stunningly brief time as antitrust chief -- is preparing to block the satellite TV merger.
Supreme Litigators
One of the best showdowns now in the D.C. courts is between Carter Phillips of Sidley Austin Brown & Wood LLP and Solicitor General Theodore B. Olson, both of whom are seasoned Supreme Court litigators. But in this case, they are not singing to the supremes. They are in U.S. District Court in Walker v. Cheney, the case of the General Accounting Office and Vice President Cheney, who refuses to turn over to Congress's auditing branch records about his energy policy task force.
But the head-to-head battle didn't quite materialize as Hearsay had hoped. Yes, Olson made a highly unusual visit to Courtroom 21 in the E. Barrett Prettyman Federal Courthouse, but he did not take the dais. He warmly greeted his Supreme Court regular and sat across from Paul D. Clement, the principal deputy solicitor general, the wunderkind Kenneth W.Starr acolyte who clerked for Justice Antonin Scalia and was a counsel for John D. Ashcroft when he was a senator.
Phillips showed his deftness, even when losing his place, telling the judge, "Too much paper here, your honor." District Judge John D. Bates replied: "You don't have to tell me that, Mr. Phillips."
It is always hard to read a judge by his questions, but Bates seemed to give the edge to the GAO on key matters, particularly the vice president's failure to make the GAO subpoena go away simply by citing executive privilege. The one hope for Cheney was whether, under the law, he could be required to provide documents when he was not a head of an agency or department.
Perhaps most telling was Olson's body language during Clement's arguments. Olson shifted in his seat, rubbed his face, folded and unfolded his arms, scratched his forehead, scribbled notes and bit his fingernails. But, then again, even Olson is entitled to bite his fingernails in a high-stakes drama such as this.
What's in a Name?
Washington's other high-stakes political-legal conflict, which could play a role who controls the U.S. Senate, is a case that Hearsay doesn't know what to call. And, apparently, neither do the parties involved.
We'll call it the Torricelli case for Sen. Robert G. Torricelli (D-N.J.), who withdrew from the Senate race with GOP businessman Douglas Forrester over the David Chang bribery scandal.
After the Torch quit the race, Garden State Democrats went to court to win approval to replace Torricelli with former senator Frank Lautenberg on the November ballot. Republicans want Torricelli to remain. The New Jersey Supreme Court sided with the Dems. The GOP appealed to the U.S. Supreme Court, setting the stage for another legal battle akin to Bush v. Gore, the presidential election recount battle.
And some of those Florida fight attorneys are back in the picture, with elections guru Robert F. Bauer of the District office of Seattle-based Perkins CoieLLP going against his equally formidable GOP counterpart, Benjamin L. Ginsberg of Patton Boggs LLP. Both are veterans of the presidential recount fight.
As for form, Bauer wins. At least that's the verdict from Supreme Court practitioner and watcher Tom Goldstein of Goldstein & Howe PC. He says the Patton Boggs attorneys wrongly filed their brief as New Jersey Democratic Party Inc., et al v. Honorable David G. Samson, Attorney General, State of New Jersey, et al. The et al after Samson included GOP nominee Forrester.
The leading Supreme Court treatise, "Supreme Court Practice" by Robert Stern, states that the "party invoking the jurisdiction of the Court should always be named first."
In this case, the Democrats did not appeal; the Republicans did. The Democrats did it this way: Douglas Forresterv. The New Jersey Democratic Party Inc., et al.
What does form matter? Our sources tell us that form matters to the supremes. Watch for the Republicans to file a correction.
Hearsay gavels open the court of public opinion every other week in Washington Business. Send your reply briefs to hearsay@washpost.com.
The Lawyer's Column
