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Who’s the next judge for U.S. v. Microsoft? Despite last week’s appellate ruling sending the case back to the U.S. District Court for the District of Columbia, it could be weeks before the trial court takes up the question. First, the time for either party to seek a rehearing at the U.S. Circuit Court for the D.C. Circuit, and then a possible Supreme Court appeal, has to expire. Then the clerk’s office at the District Court will find a new judge. Clearly, District Judge Thomas Penfield Jackson is out. Ironically, Jackson was assigned the case after the D.C. Circuit found in 1995 that now-retired Judge Stanley Sporkin had an apparent bias against the Microsoft Corp. But it’s not at all certain who is in. According to the court’s rules, the selection will be done randomly by computer: A judge will be chosen from those whose names appear in the “antitrust deck.” However, a source familiar with the court says it’s also possible that because the Microsoft case is not a new filing, it will be specifically assigned to a judge by the District Court’s Calendar Committee. Should the case be randomly assigned, all of the court’s 12 active judges, with the exception of new Chief Judge Thomas Hogan, are included in the antitrust deck. Hogan is out because the chief has the prerogative of turning down new case assignments, and he has done so. So, at most, only 10 active judges, nine of whom are Clinton appointees, are eligible to take the case. One, Judge Royce Lamberth, is a Reagan appointee. But of those judges, three might have to recuse themselves because they hold or formerly held stock in Microsoft. According to the court’s latest financial disclosure statements, which are complete only as of Jan. 1, 2000, Judge James Robertson was reported to own Microsoft stock valued between $15,000 and $50,000. Judge Emmet Sullivan was reported to have bought and sold Microsoft stock of the same approximate value in 1999. Also in 1999, Judge Henry Kennedy Jr. sold a small amount of Microsoft stock resulting in a financial gain in excess of $3,000. The remaining judges, in addition to Lamberth, are Gladys Kessler, Paul Friedman, Ricardo Urbina, Colleen Kollar-Kotelly, Richard Roberts, and Ellen Segal Huvelle. The court also has four senior judges, who have the prerogative of opting out of whole categories of cases such as antitrust. A spokesman for the clerk’s office says the court does not make public the senior judges’ decisions to participate or not to participate in specific types of cases. However, it is considered extremely unlikely that any of the senior judges will land the thick, highly time-consuming Microsoft docket sheet.

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