But Gates had "faith," he told me, "that in the final analysis, the judicial system will come up with absolutely the right answer." Gates was aware that the courts were imperfect, and he considered Judge Jackson's more imperfect than most. The son of a lawyer, steeped in the language of contracts, Gates knew a bad deal when he saw one and this was a deal that would have wrecked his business. But when I visited Gates recently in Redmond and asked him about his refusal to settle, he displayed not the slightest hint of doubt. It was an act of bloody-mindedness, of myopia, of hubris. In Silicon Valley and in Washington, DC, Gates' decision to reject Draft 18 was seen as the latest blunder in his three-year battle with the federal government. It was not a proposal that Gates could sign on to. Even for those among them who'd been asked by Gates to be devil's advocates in favor of settlement, Draft 18 was a bridge too far. But the Microsoft high command didn't see it that way. There were critics who would say this was all trivial tinkering, modest stuff of marginal utility. So in order to show the DOJ that Microsoft was serious, Posner asked Gates to put his name to the proposal. With Draft 14, Posner seemed to think he'd come close to crafting a settlement Microsoft would accept, but which restricted its behavior in significant ways. For a month or so, it went on like this, back and forth, to and fro-until they arrived at Draft 14. After presenting each draft to the opposing parties, Posner solicited their comments and criticisms, then cranked out another draft to push the ball forward. By February, the judge had begun producing drafts of a proposed consent decree, which would put certain limits on Microsoft's conduct. "The guy's super-smart," Gates told me later, bestowing on Posner his highest plaudit. Gates himself had flown out to meet Posner and spent hours on the phone with him afterward, delving into the details of Microsoft's business. Meeting with each side separately, he had, in effect, "retried the case," said one participant-rehearsing the arguments, reviewing the evidence. But given Posner's stature, Jackson hoped-prayed-he might just pull it off.Įvery week since the end of November, Posner had summoned a team of lawyers from the DOJ and from Microsoft to his chambers in Chicago. For anyone else, trying to forge a peace between these combatants would have been a fool's errand. Soon after Judge Jackson issued his findings of fact, he asked Judge Posner to step in as a mediator. Posner, the chief justice of the United States Court of Appeals for the Seventh Circuit, was a conservative jurist with a towering reputation as an antitrust scholar.
Microsoft's last hope for averting disaster lay in the hands of a different judge-the judge in Chicago, Richard Posner.
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