Verdict In the Microsoft Appeal

["cmueller" <cmueller@metrolink.net>]

	I predicted earlier that Microsoft will win its case in the U.S. appeals
court in Washington by a vote of 3-0.  At that time, the 3 judges who had
been picked to hear its appeal were: 

	(1)  Laurence H. Silberman (Reagan '85)

	(2)  Stephen F. Williams (Reagan '86)

	(3)  A. Raymond Randolph (Bush)

	Silberman has since recused himself (evidently because of his prior ruling
in Microsoft's favor) and been replaced by Patricia M. Wald (Carter 1979).

	Do I need to amend my assessment of the outcome--to account for the
replacement on this 3-judge panel of a hard-core Reaganite (with an
unblemished record of hostility to antitrust) by a reputed 'liberal' judge?


	Nope.  I'm confident that the final vote will be exactly the same as the
one I predicted originally--3-0 in favor of Bill Gates and his monopoly. 
Patricia Wald will vote with the Reagan/Bush judges, making it unanimous. 
She might even write a separate ('concurring') opinion but she's woefully
lacking in the knowledge (and the moxie) to cast a dissenting vote in
opposition to her 2 dominating right-wing colleagues.  I reviewed the
antitrust record of her court in 1993 as a part of my study of the
antitrust stance of Ruth Bader Ginsburg, one of Clinton's appointees to the
Supreme Court.  Looking at the preceding 5 years (1986-'91), I found 27
antitrust cases heard by this particular appeals court.  Wald participated
in 7 of  those cases and never cast a vote for an antitrust plaintiff. 
Instead, she routinely went along with the pro-monopoly decisions of the
Reagan judges, e.g., one written by then-judge Robert Bork.  See ANTITRUST
LAW & ECONOMICS REVIEW, Vol. 24, No. 4, pp. 15-26.

	There are 1 or 2 so-called 'liberals' on each of America's 12 courts of
appeal--(end of the line for roughly 99% of the 
cases)--but they routinely bow to the 'conservative' majorities that call
the shots in antitrust.  'Collegiality'--the notion that judicial
conscience must yield to the majority view--silences even those handful of 
federal judges who might know better on the antitrust issues.  All of the
country's 12 appeals courts (in Chicago, Boston, St. Louis, Atlanta, and so
on) are dominated by the Reagan-Bush promonopoly ideologues but none more
so than the DC circuit in Washington, whose alumni include Robert Bork,
Antonin Scalia, and Kenneth Starr.  No serious antimonopoly case has even
the remotest chance of succeeding in this court.  Evidence doesn't count
here; ideology rules. (News reports have it that Bill's private fortune
increased by some $3 billion over a recent 24-hour period, from $50 billion
to $53 billion plus.)

	Put me down as predicting that Bill will win by 3-0, with perhaps a
'concurring' opinion (lots of gas) by Patricia Wald that unanimously
affirms his 'right' to monopolize the greatest industry of our age.  As was
said of another judge of her dim ilk on U.S. antimonopoly policy, "I've
known bananas with more backbone."

	Disagree?  Tell us about your study of her antitrust voting record on her
court since '79. 

	Charles Mueller, Editor
	ANTITRUST LAW & ECONOMICS REVIEW
	http://webpages.metrolink.net/~cmueller