Excerpt #3, U. S. Court of Appeals, February 27, 2001
"Let the Bitch Slapping Begin"
Appeals Court Questions DOJ on Judge Jackson's Appearance of Prejudics

 
What happens when the Judge talks to reporters in the middle of a trial

The text in the (red font and parenthesis) is my sarcastic interpretation of what is going on in the minds of the Appeals Judges as the DOJ presents their case. For the third time in six years, let's take a look at how the Appeals Judges "bitch slap" the government's case against Microsoft.  Here, the Court of Appeals is grilling the DOJ lawyer on the conduct of the Judge Jackson.

You can hear this part of the tongue lashing at via Real Audio at http://www.c-span.org/microsoft/index.asp , scroll down to the day 2, and move the audio transcript to about 28 minutes 30 seconds.

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THE COURT: You may proceed, Mr. Roberts.

MR. ROBERTS: Thank you, Your Honor, and may it please the court. On behalf of the governments, I have no brief to defend the District Judge's decision to discuss this case publicly while it was pending on appeal, and I have no brief to defend the judge's decision to discuss the case with reporters while the trial was proceeding, even given the embargo on any reporting concerning those conversations until after the trial.

THE COURT: That makes it even worse, doesn't it, Mr. Roberts?  (So you won't even take the time to defend him, because even you realize that was the stupidest thing he could have ever done, next to ordering a breakup of Microsoft)

MR. ROBERTS: I'm sorry, Your Honor?

THE COURT: His embargo makes it worse. It makes his conduct worse. And the reason is exactly what Mr. Urowsky said: that had he not placed that embargo, he would have been off that case in a minute.  (How does a Judge get off with talking about the case with a reporter during the trial, and then worse, tells the reporter, "Hey, this is just between you and me, don't print this until after the trial". You can't have jurors talking about the trial during the trial to reporters, can you? What's the difference?  Judge Pinhead should have been thrown off the case.)

MR. ROBERTS: I don't disagree with that. Well, not the part about him being off the case. I don't disagree that the embargo makes it .. it certainly doesn't make it ..

THE COURT: Do you really think that a judge engaging in ex parte contacts and that comes to the attention of a mandamus, do you really think the court would hesitate long? A District Court judge is violating the code and the integrity of a decision by bringing in ex parte communication during the process of the case?  (Pinhead Jackson screwed up, big time)

MR. ROBERTS: It would be violating certainly the Canon 3A(6), but it certainly wouldn't necessarily be violating the code.

THE COURT: Are there some that might suggest it violates the whole oath of office? (He didn't just violate the code, he violated the who damn Judicial system.) It's not what we do. We do not have ex parte communications. And the code certainly says that: We neither initiate nor consider ex parte or other communications concerning a pending case. I don't discuss cases with my best friends. I mean that's the way we operate. We are not supposed to do that.  (This is clear.  You do NOT discuss a pending case with ANYONE!  This isn't the Springer Show, it is not Divorce Court.  This is a District Court that was supposed to be fair in hearing this case)

MR. ROBERTS: We are not defending the judge's decision below to do that.

THE COURT: And certainly telling the person not to say anything, as Judge Randolph says, doesn't make it better. It makes it worse.  (Secret insider talking during a trial is bad, especially info obtained in an interview)

MR. ROBERTS: But the question before the court is whether or not that shows bias or lack of impartiality.

THE COURT: Or an appearance.

MR. ROBERTS: The appearance of a reasonable person ..

THE COURT: That's right.  (It doesn't mater if he is biased, all that matters is could it APPEAR that he is biased)

MR. ROBERTS: .. would see a lack of impartiality from that before there's a violation of 455.A.

THE COURT: Is there any doubt under the First Circuit's case that this would qualify?  (This is a slam dunk)

MR. ROBERTS: Well, the First Circuit case was a little bit different.

THE COURT: The judge said this was more complex than another case.

MR. ROBERTS: Well, but it's more complex in the context in the sense that the judge was preparing to rule on the particular issue where that was directly pertinent. And here you don't have that.

THE COURT: What about the Newton Street Crew comment?

MR. ROBERTS: Oh, that they always get caught?

THE COURT: Yes. I mean, let's set aside the preference for not a fan of integration. Set aside all these other things, and just explain, keeping in mind that this is what a reasonable person would think about whether the judge was biased, not whether the judge is biased.

MR. ROBERTS: The question is ..

THE COURT: The Newton Street Crew.

MR. ROBERTS: Yes. And the question is does that reflect something that the judge learned during the proceedings or does it reflect bias? In other words, something that he brought to the proceedings.

THE COURT: No, no, no, no. The question is would a reasonable person hearing the comment think the judge is biased? My assumption is this. Let's assume for purposes of my question that he's not biased, that his Newton Street Crew comment was in his mind simply .. he was simply trying to articulate the point that lots of defendants don't concede their guilt. Okay? Let's just assume that he is totally unbiased. But the public, a reasonable member of the public hearing that comment, you are not suggesting would not wonder whether this judge is biased against the defendant when he analogized the .. (My mom called me during the trial.  She can no longer pay for her convalescent home because her Microsoft stock crashed 50%.  My mom yelled at me, and said get that prejudiced son off a bitch of the Microsoft case right now)

MR. ROBERTS: Perhaps I'm not following, Your Honor. But first of all, it is not an extrajudicial comment under the Supreme Court's decision in Liteky. It is a reflection based on what he learned during the proceedings, as, by the way ..

THE COURT: In Liteky, the comments were made in court. So that's a different question. These comments were made out of court.  (In Secret.  To a reporter.  Not to be told to the public until after the trial)

MR. ROBERTS: But what the Liteky court said is if the comments reflect what the judge learned during the proceedings, they are not ..

THE COURT: No, I understand that. And if he had said I believe that this defendant is unwilling to acknowledge his wrongdoing, it seems to me you would have a good argument; that that's a conclusion he reached from trial. I'm only asking you to focus on the analogy to the Newton Street Crew and to all of the connotations that conjures up for the public. This is an appearance standard.

MR. ROBERTS: Well, it is an appearance standard. All the judge is saying is that in his experience, criminal defendants .. and he cited a particular example in a case that he was familiar with .. often entrap themselves by continuing with conversations even after they know that they might be recorded.

THE COURT: That's is the drug traffic comment. The Newton Street comment .. well, both of them. It's hard for me to see .. I mean maybe you can help me with it. This is my problem with this issue. You can help me understand it.
I don't understand how you can make the point when we are talking about an appearance standard, not a reality standard, but an appearance standard, that those two comments wouldn't convey bias, maybe not to you or not to me, but to your average member of the public.  (Like I said, ordinary people were calling me up and screaming at me because they thought the judge was biased against Microsoft)

MR. ROBERTS: Well, no, because again, it does matter that this reflects what was learned during the trial because that is not bias. That is views formed during the trial.

THE COURT: You are missing my point. My point is if he had said I believe this defendant is unwilling to concede that he has violated the law, that's a conclusion that he reached during trial. I'm only .. he couldn't have reached .. I'm only asking you to focus on what the public would think about the Newton Street comment or the comment that they're like drug traffickers.

MR. ROBERTS: Well, the judge, of course .. and a reasonable member of the public would see this .. was not saying that they're like drug traffickers in the sense of trafficking drugs. What he is saying is what was remarkable about this is their e.mails continued to convey a compelling evidence for the government's case even after they knew that their ..

THE COURT: He chose a particular metaphor. A metaphor is very powerful. The metaphor he chose was the one best devised that you can imagine, other than possibly the Holocaust, to indicate that Microsoft was beneath the payoff, beyond the payoff. 

MR. ROBERTS: But that's missing how the analogy worked. The metaphor was ..

THE COURT: I understand logically completely how the analogy worked. He's talking about a specific comment. There's no problem about that.  (It's really simple.  Don't you understand?)

MR. ROBERTS: A particular case that he had in which the same phenomenon had occurred, and he was referencing it, and that was all ..

THE COURT: What you're missing on the appearance was Judge Tatel's suggestion to you on the appearance. There are a number of things, just like there are a number of things that counsel surmise after argument, not all very good in their minds. It doesn't occur to you to go out and announce all of the things that you feel.
We have even higher standards. There are lots of things that we think and feel about advocates and parties during the course of a proceeding. It doesn't mean that we are entitled to say because those feelings developed during the course of a proceeding, we are going to run off our mouths in a pejorative way because there is an appearance problem. We don't do it for that reason. And the system would be a sham if all judges went around doing this. And Newton Street are killers. These are the worst kinds of drug dealer killers. That's what we are talking about.  (We have an appearance problem here with Jackson.  He fucked up.  Big time)

MR. ROBERTS: Well, that was the basis of the metaphor. He wasn't analogizing ..

THE COURT: We have to be careful about metaphors that we use.

MR. ROBERTS: Of course. Of course. And that's ..

THE COURT: We can slip some in court because you are there to slap us back, question us or say you respectfully disagree. But when we do it in these other settings, the public has something at stake. It's the integrity of the system.

MR. ROBERTS: And that's why there's the canon of ethics, judicial conduct, 3A(6), that says you shouldn't do this. We agree that it shouldn't be done, but the difference is ..

THE COURT: Under your view, it's hard to see what role 455.A plays. I mean I can see .. let's just assume that these are totally inappropriate statements under the canons. You still have the 455.A.

MR. ROBERTS: Yes. You still have the show of bias or the appearance of ..

THE COURT: No, the appearance.  (You don't have to show bias, nor do you have to be biased.  Just appearance of bias is screwing up big time)

MR. ROBERTS: Yes, but there's nothing in the abstract about discussing the case publicly that shows bias for one side or the other.

THE COURT: Correct. That's absolutely right. Nothing .. you can have a discussion about it. That would be a neutral discussion. The example that I gave you. You know, these people just don't concede that they're wrong.

MR. ROBERTS: And the only thing that in an extrajudicial setting, and that's what we're dealing .. we are not dealing with the extrajudicial comments here because this reflects what the judge learned during trial. And what the Supreme Court said in Liteky, that those are not a basis for a bias or partial ..

THE COURT: It is extrajudicial in the sense that it's not in the courtroom subject to the opportunity of counsel to respond and to make a record on these subjects. And I have to ask you what possible legitimate reason .. if you are a member of the public and you are forming a impression as to whether the judge is biased or not, what possible legitimate reason could you assign to a judge going to media reporters and making derogatory comments about the parties to a lawsuit that had been tried in front of him unless the judge were biased against him?
He has the courtroom forum to do all of the legitimate things he needs to do to Microsoft or the government or the other litigant. What's the unbiased reason for a judge to go out .. to go in his chambers and hold secret conferences with reporters to say bad things about a litigant?  (I can't believe Jackson was stupid enough to do this?  What was he thinking??)

MR. ROBERTS: What Your Honor is suggesting is that it is improper to engage in that conduct.

THE COURT: In ex parte conduct? Yes, absolutely.  (Can't you pay attention to why we are concerned?)

MR. ROBERTS: Of course.

THE COURT: Absolutely.

MR. ROBERTS: I'm not disputing that, Your Honor. And I began by noting that I ..

THE COURT: Isn't it likely that it's going to look to a member of the public as if this judge has some other axe to grind or he wouldn't be doing something that improper?

MR. ROBERTS: It is improper. I think that perhaps the best that can be said about it ..

THE COURT: It's beyond the pale. I mean that's what we are saying to you. It is so extraordinary. The ex parte contacts? It's so high is what Judge Sentelle is saying, how can anyone assume anything other than the worst?  (We want to hang Jackson.  He is making a mockery of our judicial system)

MR. ROBERTS: Well, what is the assumption? The leap in logic that hasn't been filled in is because there was an improper discussion of the case in public, that somehow shows actionable bias ..

THE COURT: Raises an appearance of.

MR. ROBERTS: .. or appearance of lack of impartiality ..

THE COURT: We are not saying actual bias. Appearance. (Focus.  Appearance is the test.  Not Bias.  Appearance.  It "appears" to normal people that he is biased)

MR. ROBERTS: .. toward one side or the other. That's different.

THE COURT: The one that he compared to the Newton Street Crew and the one that he accused of not being adept at business ethics would be likely the one he might be biased against.

MR. ROBERTS: When you get to the content .. and that is where if the discussion is going to be under 455, putting aside, no dispute that this is improper under 3A(6), if the discussion is under 455, then you have to show the deep.seated favoritism or antagonism that would make fair judgment impossible. And you don't show that if what the comments reflect are what the judge learned during the proceedings.

THE COURT: Give me an example of something he might have said that you would concede would be a basis for 455.A.

MR. ROBERTS: 455.A recusal would be a comment not drawn from the trial, starting before the trial. You know, I don't like big companies. If I get a chance, I'd like to break up any big company I can get my hands on. That would be bias. That would not be drawn from the experience of the trial. It would be something .. the prejudice the judge brought to the trial, not something he took from it. 

THE COURT: Does it have to be after the completion of the trial that he makes the statements so that he's heard everything from both sides? 

MR. ROBERTS: No. Of course not.

THE COURT: So if he makes the statement after hearing just from the government and says, well, this defendant seems to be like the drug dealers, and then maybe hears from the defendant later and changes his view, he has not given the appearance of bias?

MR. ROBERTS: No, not under the Supreme Court's decision in Liteky. They draw a sharp line between whether the judge is reflecting what he learned during the proceedings. And the integration example ..

THE COURT: They draw that line in a very explicit way. The fact of the opinion held by Judge Girard in court outside the judicial proceedings is not a necessary, underscored ..

MR. ROBERTS: Of course.

THE COURT: .. to provide for prejudice recusal.  (i.e., eject the judge from the case)

MR. ROBERTS: Of course. You have to show that the content of the statement itself reflects actionable bias. The mere fact ..

THE COURT: What we said in Microsoft 1 was the facts might reasonably cause an objective observer to question the judge's impartiality. 

MR. ROBERTS: And Microsoft 1 involved a decision; the judge on the Court of Appeals was basing his decision on a book, an extrajudicial source.

THE COURT: With all due respect to some of the ex parte contacts, we made it very clear in that decision it didn't matter whether the judge considered them. We said it was the fact of the ex parte contact that was so troublesome. That's the point that I'm so distressed about. You're not dealing with .. it was the fact; that's exactly what we said in Microsoft 1. 

MR. ROBERTS: Your Honor, I'm not dealing with the fact of an ex parte contact because we don't dispute that the ex parte contacts were wrong. But what we do dispute ..

THE COURT: And gave an appearance, reached the appearance problem that we are concerned about.  (Focus.  A-P-P-E-A-R-A-N-C-E is the test)

MR. ROBERTS: The leap, again, that we don't think has been surmounted, is showing the discussion with the reporters or the public discussion after the trial was over show bias.

THE COURT: It seems to me you are confusing two things, Mr. Roberts, with all respect. We have a statute. It's 28 U.S.C., 144, that requires judges to step down for bias or prejudice. And it can serve as a basis for an action. That's one type of disqualification.
We are not talking about that here. What we are talking about is 455, Section 455, which is directly copied, word for word, except for one thing, from Canon 3. I don't know if you realize that. That Canon 3 came first, and then Congress enacted it in to law. So we are talking about a violation of Canon 3, and necessarily we are also talking about a violation of 455 because if it doesn't violate 455, there's no remedy.
Now, Justice Scalia, I think it was, wrote Liteky, and he said, "Recusal is required whenever there is a genuine question concerning a judge's impartiality." A genuine question. You don't have to show bias. Is there a question whether Judge Jackson was impartial? And these comments to reporters, and my colleagues are suggesting to you, raise a question about his impartiality. And if they do, then recusal was required.  (It appears to me that the judge could be viewed to have the appearance of being anti-Microsoft and anti-Bill Gates.  So then he should have been thrown off the case)

MR. ROBERTS: This court established in the Barry case, and I believe in the Haldeman case as well, that a transgression of the canons does not establish a violation of 455.

THE COURT: Not necessarily. 

MR. ROBERTS: Not necessarily establishes. Exactly.

THE COURT: The canons say that. I'm not suggesting otherwise. The canons say that. I'm suggesting to you that 455 is a copy of Canon 3. There is, you admit, a violation of Canon 3. If there is a gross violation of Canon 3, that the authorities also say that that can lead to a violation of the statute. You agree with that, don't you?

MR. ROBERTS: They're separate questions. It is certainly pertinent, I think, in assessing number 455 what the canons provide. But as the Barry case establishes, a violation of the canons does not automatically lead to a violation of 455.

THE COURT: I'm not suggesting it does. What about a gross violation of Canon 3?

MR. ROBERTS: It would depend on the connection. And the difference here is that the gross violation of Canon 3 is the public discussion, the ex parte contacts with the reporters and public discussion that. That by itself does not establish bias or a lack of impartiality. The clearest
example ..

THE COURT: Does it raise a question of impartiality? That's the issue.

MR. ROBERTS: Well, you have to look at the content of the statements and determine the source of the statements. I guess the easiest example I can give is let's suppose a judge has an improper ex parte contact and what he says is this was a wonderful case. Both sides did a wonderful job. I have no other views about the merits.
Now, is that a violation of the canons? Yes, because he's not supposed to have any.

THE COURT: All you are doing is highlighting the gravity of the situation here because your hypothetical is not close to what happened.  (You are evading my questioning, evading my logic.  I am not an amateur.  The Judged fucked up.  Admit it, damn it, so we can move on)

MR. ROBERTS: No. Your Honor, with respect ..

THE COURT: We don't have to worry about it. He went on for hours and hours and hours in an ex parte contact with employers who were given access to chambers to hear his views and apparently to take some of their views on an ongoing case. It is nowhere near your hypothetical. We all agree it's only a voidable standard. We agree with that. But your hypothetical highlights the problem here. He's so far from anything that seems benign, that that's what we are concerned about.  (I bet that asshole Jackson bitched and moaned to reporters about us overturning his previous rulings against Microsoft.  If you think it is bad now, just wait until I hear what he said about the Court of Appeals judges to the reporter.  We will personally string him up by the balls.)

MR. ROBERTS: No. The question, he did not go on for hours and hours and hours ..

THE COURT: The interviews went on for hours and hours.  (Duh, this is a fact.  There are notes.  The interview was very long)

MR. ROBERTS: They may have gone on for hours but the point is ..

THE COURT: You don't think that the public at large watching the system doesn't look at that and say good heavens, is that what judges do? They take preferred reporters in, and they will discuss with them what's going on in a case and listen to their views and take their views and reactions from the public and then show them all their notes? You don't think parties should be distressed about that?  (My mom is distressed about this.  My stockbroker is distressed about this.  My mutual funds are distressed about this)

MR. ROBERTS: And if that's all they know, will their conclusion be, well, he's therefore biased against defendant?

THE COURT: Appearance.  (Repeat.  We have an appearance problem.  Appearance is all that counts in this issue)

MR. ROBERTS: But the appearance is still .. the question is the appearance of partiality.

THE COURT: See, Mr. Roberts, I actually completely agree with you, and we may not totally agree up here, because I completely agree with you that repeated violations of the canons are not in and of itself a basis for 455-A recusal. I agree with you about that. He could have said what you said a hundred times, and it wouldn't have been a basis for recusal.
To me, the problem here .. and I also agree with you in your reading of Liteky, that is, that views acquired by a trial judge or any judge during the course of the proceedings can't be a basis for recusal unless they reveal deep seated in antagonism. I agree with that.
The problem I see here is the way in which he characterized his views about the defendants. When we are applying an appearance of impropriety standard, that's where I'm stuck. And that brings me back to phrases like the analogy to the Newton Street Crew and to the drug traffickers and to Bill Gate's ethics.
They may all have been ways of expressing .. his way of expressing his views gained at trial. And had they been stated in other terms, they might have been fine. But the words he chose, I just don't see how you get around the fact that the words he chose convey to the average member of the public bias. That's the problem.

MR. ROBERTS: My main point is again, Your Honor, it's the Liteky point, and a reasonable observer would have it take this into account, would be that this was not gained during the trial. The other part about it .. again, these handful of statements, and of course, one is too many, but the point is we are dealing with a discrete number, are not a basis for vacating findings of fact that are fully supported by the record. At each turn, the findings of fact ..

THE COURT: You say a discrete number of statements. Do you recall any case ever in which a trial judge made as many statements about ongoing litigation to reporters as Judge Jackson made?

MR. ROBERTS: No, Your Honor, I don't, but the ..

THE COURT: It may be a discrete number, but it's the biggest number that has ever occurred. We need to draw a line to exclude anything. (Jackson screwed up more than any other judge in the history of judges)

MR. ROBERTS: As I said, any one of them, of course, would have been too many. But the findings of fact are fully supported in the record.

THE COURT: Let me ask you .. excuse me. Go ahead. Finish your sentence.

MR. ROBERTS: I was just going to say there are two separate questions: whether the judge's conduct was proper and whether or not the judgment should be vacated. Those require separate analyses. We believe the findings of fact are exhaustively supported by the record. The fact that the judge may have ..

THE COURT: The standards we reviewed for the findings of fact that we discussed some yesterday involves affording a presumption of regularity to the judge's findings. If the judge is not an unbiased trier of fact, those would be the underpinning for us applying clearly erroneous standards to the findings of fact evaporate.  (If the judge is an idiot and biased, then all of your case and claims should be thrown out)

MR. ROBERTS: And this is where the Liteky point becomes critical because if the bias is something the judge brought to the proceedings, yes, then you would wonder whether the findings of fact were entitled to the differential standard of review. But if under Liteky what the comments reflect are what the judge learned during the trial, then there is no basis for doing anything other than affording them the traditional, clearly erroneous standard.

THE COURT: Mr. Roberts, what about the remark made to Auletta, "What I want to do is to confront the Court of Appeals with an established factual record which is a fait accompli, and any part of the inspiration for doing that is that I take mild offense at their reversal of my preliminary injunction in the consent decree case." So he shares with us part of his purpose in writing the findings of fact which you say are well supported, and maybe they are. (So it appears that Judge Jackson thinks that the Court of Appeals judges are idiots because we reversed him?  THAT SON OF A BITCH NIMROD IS CALLING US IDIOTS?  Where's the string, and someone get the Judge Jackson's pants off.  We are doing the ball stringing right now)

MR. ROBERTS: Well, what I understand that to be is an explanation for the separation of the findings of fact from the conclusions of law, which to me is no pertinence whatsoever. It doesn't make the findings any more supported or any less supported. We encourage ..

THE COURT: I would have thought your answer would have been of course he's upset at getting reversed. No one likes to get upset .. get reversed, and that doesn't show bias. 

MR. ROBERTS: No. Well, that's also a good answer.

THE COURT: I don't like getting reversed either. (And we reversed Jackson before, and now he brings virtually the same type of case back to us AGAIN, in an attempt to reverse the Court of Appeals?)

MR. ROBERTS: What this court said in the Southern Pacific case when it was confronted with the situation where the allegation of bias was made, and the argument was therefore do something other than apply Rule 52.A, the clearly erroneous standard, is the court said no, the standard is the same. We will apply it with painstaking care.
Now, we encourage the court to apply the clearly ..

THE COURT: What did you just say I said in Southern Pacific? I'm sorry.

MR. ROBERTS: You rejected the argument that you should alter the standard of review, but you said you would examine the findings of fact with painstaking care.

THE COURT: I think I said prospectively. This case is not like one I'll see in what, five years?

THE COURT: They're not close.

MR. ROBERTS: What we would encourage the court to do is to examine the findings of fact with painstaking care because we are confident when the court does that, it will find that the record fully supports each of the District Court's findings.

THE COURT: If we are affording the presumption that an unbiased trier of fact has made these findings, and it is a rational to say if there is evidence to support that finding, then we must uphold it. If we do not indulge in a presumption of impartiality on the basis .. on the part of the finder of fact, then it's no longer rational to subject it to that painstaking review. If there are disputed questions of fact, why is the one chosen by the trier of fact entitled to deference anymore he's not an unbiased finder of fact?  (If it looks like a dumb monkey, and it walks like a dumb monkey, and it utters sounds like a dumb monkey, then.....)

MR. ROBERTS: Your Honor, again, the question is whether the statements show views gleaned from the trial, in which case you would expect them to be consistent with the findings of fact, or ..

THE COURT: Would it be your position then or am I misstating it to say that in order to change the standard of review on findings of fact, there must be evidence of actual as opposed to an appearance of bias?

MR. ROBERTS: I don't think changing the standard of review for factual findings is in the cards. I think Southern Pacific answers that.

THE COURT: Setting it aside might be. Setting aside the judgment might be right.  (Let's just throw out what you guys concluded about Microsoft)

MR. ROBERTS: If bias is found, and if bias from before the proceedings, not from the proceedings, is found, that is an option for the court, but ..

THE COURT: Mr. Roberts, you are constantly saying that you have to find bias. And I don't think that's the law.
Let me give you an example. Let's suppose that I were sitting on a case, and it just so happens that my best, closest, personal friend was you. Now, that creates an appearance of impropriety. I should recuse myself if we have a very close social relationship. And there are rulings by the Codes of Conduct Committee so stating.
But I don't have a bias about the case. I just created an appearance of impropriety. I've created an appearance of lack of being the neutral judge, in Burke's word, the cold neutrality of an impartial judge. It's the appearance that I have created. I don't have an actual bias.
The question here is what kind of an appearance for the public did Judge Jackson create? Not whether he was actually biased or not. In fact, I almost agree with you that if everything he said to Mr. Auletta and the other people he said in open court, that I don't think a motion under 144 to disqualify him would stand.
That's the point you keep making. I think you're probably right about that. But the point you keep avoiding is what kind of an appearance did he create.  (Appearance.  You try to argue proving bias.  All Microsoft has to do is prove APPEARANCE of bias)

MR. ROBERTS: I think you do have to separate the questions. What is objectionable about the appearance? Is it ex parte contacts, public statements while the matter is proceeding, or is it that those statements show bias and impartiality? I think those are two different questions.
No one is disputing the transgression with respect to the canon of ethics against the public comment, but that's very different from saying that creates an appearance of partiality as opposed to an appearance of violating the canons for lack of discretion.

THE COURT: Let me cover Judge Randolph's question a different way. I've been thinking for the last 15 minutes about your answer to my question about an example of a violation of 455.A. And the one you gave was a judge who says I'm against breakups; right?

MR. ROBERTS: I think the judge in this case said I am in favor of breakups.

THE COURT: Well, either way. That's an example of a judge being biased. The question we have to apply here is the appearance of bias. That's where we're disagreeing. You gave an example of an actual bias.

MR. ROBERTS: Well, an appearance .. I suppose it's difficult to imagine ..

THE COURT: Well, of course. I mean if somebody is absolutely biased, they're going to appear biased. The Newton Street Crew is a different kind. Your theory of 455.A doesn't seem to account .. at least, I haven't understood how you account from your theory of 455.A for the difference between a case of an actual bias and a case where the judge is not at all biased, as I'm willing to assume here, but may appear to be biased. You just haven't gotten me there yet.

MR. ROBERTS: Well, again, with the Newton Street Crew, I don't think a reasonable observer is going to say the judge thinks these people are drug dealers. They're going to say the judge gave a very specific ..

THE COURT: Give me an example then of a case .. let me ask you my earlier question. Give me an example of a 455 .. of a judicial statement that is not an actual bias but that you would concede gives the appearance of bias.

MR. ROBERTS: I mean, the judge complaining that he can't get his computer to work and suggesting that the fault is with the company. That wouldn't show that he's unable to evaluate the merits of the case, but to an observer, it might suggest that it would. It's hard to imagine, other than the personal relationship type of thing that Judge Randolph was talking about, where there would be an appearance. But again, the overriding point is there's a different question between the propriety of the judge's conduct and the validity of the judgment based on the findings of facts. That distinction needs to be kept in mind.

THE COURT: Do you have a position on the court's suggestion in Liteky that there's a laxer standard under 2106 for removal of the judge going forward?

MR. ROBERTS: Well, certainly there is a laxer standard. This court has in the past applied a .. remanded a case to a different judge, even in a situation where it has rejected a finding of bias. And that is a matter of institutional control rather than the judicial code.

THE COURT: Would the government take a position on whether we should put a different judge in charge if we remand this case?  (It seems like the only reason you brought this bumbling case before us is because Jackson screwed it up so badly, and had it out to bring down Microsoft, no matter what the facts actually were.)

MR. ROBERTS: Our position is that you should not remand it to a different judge for the reasons we have said. We don't think that the ..

THE COURT: Even forward looking, you would still go with this judge having these comments.  (You can't be serious that we should keep Jackson on this case)

MR. ROBERTS: Because we don't think the comments show bias, and there are serious institutional costs ..

THE COURT: I understand that you were not the attorney at the trial stage here. But suppose the judge had said, you know, after watching Mr. Roberts' conduct during this trial, I think he is technically a very good lawyer but not real adept at legal ethics. Would you feel that you could get a fair trial going back before that judge?

MR. ROBERTS: As the lawyer appearing before the judge, I think it would be different than a discussion about the clients.

THE COURT: But you do think it would raise at least an appearance of bias towards you, do you not?

MR. ROBERTS: The judge commenting on the lawyers's ethics in that manner? Yes.

THE COURT: Here it is the parties' ethics. Should the party be less sensitive to bias than an attorney so that the parties should think I can get a very fair trial? There's no appearance of partiality or bias against me by a judge who questioned my ethics? 

MR. ROBERTS: The comment reflects exactly the findings of fact of a violation of the Sherman Act by the judge based on the evidence that he saw.

THE COURT: I think you are back to wanting us to require reality as opposed to an appearance of bias when you make that response to me. (You are losing your argument that there is no appearance of bias)

MR. ROBERTS: Well ..

THE COURT: Well, I'm not sure that I see how you can with a straight face ask us if we remand, to send it to the same judge after these comments. (You bonehead.  You know it and I know it.  Jackson is an idiot)

MR. ROBERTS: We don't think that the comments show bias, and we don't think .. although they show transgression of the canons, they don't show bias or lack of impartiality. And that is an important distinction.

THE COURT: All right. Thank you. (Whatever.  You loser)