In an unusual set of circumstances, Microsoft notified Judge Thomas Penfield Jackson of its plan to appeal his ruling at the same time as the company asked the US Court of Appeals to hear the case and the Appeals court had agreed to hear the case in advance of the request.
As Microsoft’s lawyer handed the appeal to the court, he was immediately given an order that had been prepared in advance, approving the appeal request and outlining an extraordinary procedure under which all eligible judges in the 12 member appeals court would hear the case, rather than the Appeal Court’s usual three-judge panel.
However, it is still possible that the appeal will by-pass the Appeals Court and go directly to the Supreme Court for review, as the Justice Department has requested. The US Department of Justice said in a statement: “Immediate Supreme Court review of this case is in the public interest because of its importance to the American economy.” Such by-passing is permissible in major anti-trust cases.
In its appeal Microsoft criticised Judge Jackson for “an astounding abdication of the judicial function” and for his “shocking” comments in newspaper interviews about his deliberations.
Observers say that Microsoft’s best chance of a sympathetic hearing is in the Appeals Court. The Court’s apparent eagerness to hear the case might make the Supreme Court less likely to ‘pull rank’ and take over the case at this stage.