Supreme Court Nominee Once Tussled With Microsoft - InformationWeek

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7/20/2005
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Supreme Court Nominee Once Tussled With Microsoft

President Bush's nominee for Supreme Court justice may have a better grasp than most on the court when it comes to technology issues, sources say.

President Bush's Supreme Court Justice nominee has a better grasp than most currently on the high court when it comes to technology issues, an antitrust expert said Wednesday.

John G. Roberts, Jr., who Tuesday night was presented by Bush as the possible replacement for Sandra Day O'Connor, is currently a judge on the U.S. Court of Appeals for the D.C. Circuit. Prior to that appointment in 2003, however, he was in private practice with Washington's largest legal firm, Hogan & Hartson, LLP. While there, he represented the 19 states in the government's antitrust case against Microsoft.

In 2001, he was one of the lawyers who argued before the appellate court in Microsoft v. United States of America and State of New York, et. al. While officials from the Department of Justice handled the federal government's side, Roberts represented the involved states, which included New York, Minnesota, California, and others.

"Although it was not a crucial technology case -- it was actually a very conservative antitrust case -- I think the nominee, by having been involved, will have a clearer idea of technology issues than the other Justices," said Nicholas Economides, a professor of economics at the Stern School of Business of New York University. Economides has written extensively on the Microsoft antitrust case, and in 2002, filed an amicus brief with the Department of Justice.

While Roberts' efforts went unrewarded -- the Department of Justice and nine states later reached a settlement with Microsoft, with the rest of the states left to make their own arrangements with the Redmond, Wash.-based developer -- his work on the case, if anything, shows that he'll be a good fit for the Supreme Court, Economides added.

"I'm not sure what else you can infer from the position a lawyer takes in a case," Economides said. "A lawyer is a lawyer. But the fact that he represented 19 states shows, if anything, that he's able to work well in groups."

Roberts, who has been on the federal bench for less than three years, had earlier been touted as one of the country's top lawyers when presenting before the Supreme Court. He has argued before the Court 39 times, and won 25 of those cases.

Even so, he wasn't impervious as a lawyer. During the 2001 arguments before the D.C.-based appellate court (on which he now serves), Roberts was "hammered" by the seven judges, according to media reports written at the time.

As to his connection to Microsoft -- albeit from the other side -- it’s unlikely, said Economides that Roberts, assuming he is confirmed to the Court, would have to recuse himself in a technology case.

"Cases that come to the Supreme Court are those with fundamental constitutional issues," said Economides. "It's possible something from Microsoft might reach the Court, although anything to do with antitrust would be doubtful." If anything, he added, it would be more likely that a Microsoft-related intellectual property issue would reach the final legal destination. Those, like the Grokster case decided in June, often make it all the way.

Other sources, including former colleagues, declined to go on the record with opinions, citing rules that prevented them from commenting on people who they might face in the future across the bench.

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