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The U.S. Circuit Court for the D.C. Circuit’s decision in United States v. Microsoft has generated abundant debate about the antitrust rulings that formed the core of the case. By contrast, the court’s decision to disqualify District Judge Thomas Penfield Jackson from further participation in the case has met with near-unanimous approval. That’s not right. Judge Jackson’s publicly expressed views were widely reported in the media — he developed harsh opinions on Microsoft’s litigation tactics, its legal position, and the credibility of its witnesses. But in condemning Jackson’s expression of those views, his critics lose sight of precisely how it is he came to hold them. Nobody has ever suggested that Judge Jackson had a preconceived bias against Microsoft. And there is no evidence that he developed his beliefs from any source other than the trial proceedings. And when a trial judge reaches strongly felt conclusions about a litigant, based on in-court evidence and activities, what’s there to object to? As the Supreme Court stated in Liteky v. United States (1994), “The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill-disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.” So consider a hypothetical: What if Judge Jackson had expressed exactly the same views from the bench or in a published opinion, rather than in press interviews? In that case, nobody, least of all the D.C. Circuit, would have had any reason to consider removing Jackson from the case. As the appeals court recognized, the problem was not with what Judge Jackson said but “to whom he said it and when.” Why is this so? Why is speech to the press (and, thus, to the American public) of less value than opinions addressed directly to the litigants? In my view, ethics rules constraining judicial public expression give insufficient weight to First Amendment values. Even judges have a right to engage in public speech. As the 7th Circuit’s Judge Richard Posner (who unsuccessfully attempted to mediate the Microsoft dispute) wrote in Buckley v. Illinois Judicial Inquiry Board (1993) of the tensions between freedom of speech and impartial justice, “only a fanatic would suppose one of the principles should give way completely to the other.” There is good reason to believe that a prominent jurist’s effort to explain the ground for a significant decision publicly, in understandable, nonlegal terms, is a positive contribution to the public’s understanding of the judicial system. There is a substantial basis for believing that public discourse about vital legal issues relating to technology and the law was enhanced by Judge Jackson’s actions, rather than diminished. Rather than seeing value in Judge Jackson’s conduct, the D.C. Circuit used four arguments to condemn it. First, the court held that Judge Jackson’s comments to the press violated the “black letter” of Canon 3A(6) of the Code of Conduct for U.S. Judges, which prohibits judges from publicly commenting on the merits of a pending matter. Perhaps so. But more important than the canon’s language is its purpose. And that purpose is to ensure, as the ABA recognizes, that judges’ comments not affect the outcome of a proceeding, impair its fairness, or interfere with a hearing. The D.C. Circuit made clear in its opinion that the canon also applies to a judge’s own hearings. But as Judge A. Raymond Randolph said of the canon during oral argument: “And the theory underlying that, as I understand it, is that when judges talk about cases in other courts, they may unduly influence the jury, or they may unduly influence the judge who’s handling the case, all to the detriment of the party.” By contrast, Judge Jackson’s comments, which he gave the press permission to use only after he issued his holdings, could not possibly have affected the hearing he was conducting. And characterizing his comments as an attempt to influence the disposition of the appeal by the circuit court simply does not accord with the reality of the circuit judges’ independence. Are we really to believe that the evil of Judge Jackson’s actions is that he might have successfully convinced an appellate judge of the correctness of his views by speaking publicly, even though he was unsuccessful in doing so through his formal legal opinions? Though the black letter of the ethics rule might have been violated, the underlying policy was not, and that technical violation seems no reason to question the judge’s impartiality. Second, the court held that Judge Jackson’s expression of his views to the press deprived Microsoft of an opportunity to rebut and respond to his opinions in court. But Judge Jackson’s statements to the press were no different in kind than the views he had already expressed from the bench — a circumstance that the 2nd Circuit has recognized is not an ethical violation — see United States v. Yonkers Board of Education (1991). Perhaps Judge Jackson’s views were expressed a bit more colorfully, but they were not at odds with his actions in open court. In short, as the trial proceeded, Microsoft knew that its efforts to persuade the judge were failing, and nothing more than that message was conveyed in Judge Jackson’s press interviews. Third, and perhaps most substantial, the D.C. Circuit was concerned that Judge Jackson learned information from the press that influenced the merits of his decision. If this were so, I would join in condemning Judge Jackson’s conduct as constituting inappropriate ex parte contacts. But the appeals court does not know who said what to whom. Simply because the judge spent a significant amount of time speaking to the press, the court thought “it safe to assume that these interviews were not monologues.” The court referred to only a single instance in which a member of the press mentioned to the judge something relating to the case: A reporter told the judge that Microsoft employees were shocked that he thought they had violated the law. This position, of course, is consistent with what Microsoft’s lawyers were saying in court every day. Using that single statement as a basis to assume that reporters told the judge other, inappropriate information is wholly unwarranted. Why, instead, didn’t the D.C. Circuit assume that a well-respected judge of long-standing experience understood and abided by the limitations imposed upon him? And, more important, if the ex parte issue were of such significance (as it might be in certain factual situations), why not remand the matter to determine what actually happened, instead of making assumptions? Or, if necessary, why not refer the question to the judicial disciplinary process for fact finding and to afford Judge Jackson an opportunity to respond? Microsoft got a fair hearing — shouldn’t Judge Jackson? Finally, the Court of Appeals stated that the nature of Judge Jackson’s actions would lead an informed observer to question his impartiality. The court believed that his public comments conveyed the impression that Judge Jackson “coveted publicity” and was “posturing for posterity.” They thought the public might question whether a publicity-seeking judge would, either consciously or subconsciously, choose the publicity-maximizing outcome. The remarkable thing about this argument is that nobody else seems to have even thought of it. None of the litigants suggested that Judge Jackson ruled against Microsoft because he sought public adulation. Rather, they apparently accepted his assertion that he spoke out to educate the public. And why, one wonders, does the appeals court suppose that ruling against Microsoft would be the publicity-maximizing outcome? A decision in Microsoft’s favor would also have been a public bombshell. Most telling, the court’s logic is not limited to the Microsoft case. That is, any judicial decision in any high-visibility case is subject to an “appearance of partiality” claim based upon the jurist’s perceived desire for favorable public reaction. Had Judge Jackson’s views been expressed from the bench they would have caused little concern. Had Judge Jackson maintained a detailed diary and published it after the final appellate resolution of the case, that, too, would not have run afoul of any ethical or legal prohibition. The only difference between those two hypotheticals and what actually happened is that Judge Jackson let someone else edit his verbal diary and authorized its publication before the final appeal had been concluded. But that is not evidence of bias or partiality. Rather, it is, at most, a violation of a judicially self-imposed code of silence that undervalues countervailing First Amendment principles. Was Judge Jackson’s decision to speak to the press unwise? Perhaps. It has certainly called into question the most significant decision of his legal career. But with all due respect, I find unpersuasive the D.C. Circuit’s unanimous conclusion that Judge Jackson appeared to be biased or partial. Rather, the public’s understanding and appreciation of the complex legal issues presented in Microsoft were enhanced by Judge Jackson’s speech. His critics have failed to address this important public benefit, much less weigh it in the balance when considering his actions. Paul Rosenzweig is the principal at the Rosenzweig Law Office, where he practices appellate advocacy, criminal law and legal ethics. He is a member of the D.C. Bar Legal Ethics Committee. The views expressed in this article are his own and do not reflect the opinion of the committee. He wishes to thank Douglas Schafer, an attorney in Washington state, for his thoughtful insights.

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