US president-elect George W. Bush says he opposes a forced breakup of Microsoft, but that doesn't mean he'll intervene. To begin with, Bush has bigger problems.
While speculation has run high that the president-elect and his nominee for attorney general, Republican Senator John Ashcroft will swoop down and wipe away Microsoft's legal woes, antitrust experts say that is unlikely to happen.
The reasons are both political and practical. With a deeply divided Senate and weak initial political support after the struggle for Florida's 25 electoral votes, Bush will have to pick his initial policy battles carefully. Microsoft is not likely to be one of them, particularly considering that the appeals court is expected to overturn much of the government's victory.
"Given the political and practical realities, the new administration is not going to tamper with the case in the short term," said Bill Kovacic, a professor at the George Washington University Law School.
"The administration is not likely to put its footprint on the litigation until after the Court of Appeals issues its decision in May or June."
The US Court of Appeals for the District of Columbia Circuit is handling Microsoft's appeal of a devastating ruling and remedy.
In April, US District Judge Thomas Penfield Jackson determined that Microsoft violated two sections of the 1890 Sherman Act. He later ordered that Microsoft be broken into separate operating system and software application companies but stayed the order pending appeal.
'Steady as she goes'
The appeals process is expected to pick up momentum January 12, when the government files its principal legal brief in the case, followed by oral arguments February 26 and 27.
While Bush has publicly indicated that he opposes a forced breakup of Microsoft, even if he wanted to intervene immediately there is no practical way this can happen, legal experts say.
Bush has bigger problems than Microsoft to deal with. The legal battle over Florida's electoral votes delayed his putting together a cabinet and filling about 3,000 politically appointed positions--all requiring background checks and around 1,000 subject to Senate confirmation.
The delays also make it unlikely that Bush can get Ashcroft's nomination approved before oral arguments in the Microsoft case begin.
This alone, according to Kovacic, is reason enough to tell acting assistant attorney general A. Douglas Melamed, " 'Steady as she goes. Argue the case, pursue the case, and we'll see what the Court of Appeals does.' "
Let others do the dirty work
"You tell the professional staff you will reassess at the most natural point, which is the Court of Appeals decision," he added.
Bob Lande, a professor at the University of Baltimore School of Law, agreed, particularly considering the Court of Appeals is expected to overturn much of the government's victory.
"You let the appeals court do your dirty work so you don't get accused of playing politics," he said.
Bush's biggest problem in rallying behind Microsoft is simple: He has little or no political capital on Capitol Hill.
After a close, bitterly contested election, the incoming president may face less good will from Congress than what normally might be given to a president during the first 100 days in office.
Bush also must grapple with a deeply divided Senate and a slim Republican lead in the House of Representatives.
