Re: Kaplan's Opinion [Was: Space-Shifting]

At 4:34 AM -0400 10/21/00, Bryan Taylor wrote:
>I do question Chief Justice Rehnquist's
>decision not to recuse himself if the Microsoft case (his son did MS
>antitrust work).

If Rehnquist wanted to benefit his son he would establish a precedent of recusing himself from every case in which his son has represented one of the parties. Litigants nationwide, from the ACLU to NOW would flock to the firm to bar Dad's participation in considering their appeals. Junior would get rich beyond his imagination. And self-appointed monitors of judicial ethics would all applaud.

If Rehnquist wanted to benefit his son's client, Microsoft, without leaving fingerprints, he would engineer a grant of cert and affirm in CSU v. Xerox, presenting the question: "whether a company with a monopoly in a market for products containing patented or copyrighted material is immune from antitrust liability and from a finding of patent or copyright misuse when that company selectively refuses to license or sell those products in order to monopolize a separate market." Who could complain?

The decision to remand US v. Microsoft to the Court of Appeals was 8-1. Without the Chief Justice it would have been 7-1. The reason appeals are heard by 3-member panels in the Court of Appeals, and by nine in the Supreme Court, is so that no one judge can decide the case. So even where the CJ can make the difference, he needs half of the rest to agree with him. Interesting historical fact: one of the two judges who dissented in the Dred Scott case was the brother of the lawyer who represented Dred Scott. I'm sure the scuttlebutt at the time was that he sided with that d*** n***** because his brother was on the case. But it was 7-2 and the unethical justice who would have held that Dred Scott was not property returnable to its owner couldn't change the outcome.

Do you really think -- do you think anyone really thinks -- that Rehnquist would abandon his judicial philosophy to toss a bone to junior. I'm no fan of the Chief Justice, but the suggestion that he would roll over for his son is laughable.

John Noble Received on Wed Oct 25 2000 - 06:22:02 GMT