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The Jan. 5 announcement that Jeffrey Minear and David Frederick will argue the Microsoft appeal for the Department of Justice thrust into the national spotlight two career government lawyers who have regularly avoided the public eye. Minear, 45, and Frederick, 39, are highly regarded veterans of the solicitor general’s office, the elite group of about 20 lawyers who spend most of their time representing the U.S. government in the Supreme Court. They don’t come close to enjoying the profile of David Boies, who won the landmark case for the government last year in U.S. district court, or former DOJ antitrust chief Joel Klein, who brought the case in 1998 but left Justice last September. But appellate experts say the government’s decision to tap Minear and Frederick for the argument in the U.S. Court of Appeals for the D.C. Circuit may have been precisely the right move, given some rather unusual political circumstances. First among them: President George W. Bush is thought not to be as keen on the case as the Clinton administration, which hopes the case will become its major antitrust legacy and wants to do whatever it can to keep its trial win intact. Second, Klein has left the government. Boies is mainly a trial lawyer and would be an unlikely choice for the incoming Bush administration, since he represented Vice President Al Gore in the Florida election cases. Solicitor General Seth Waxman is a political appointee and will probably be out of office by Feb. 26, when the two-day argument will begin. That leaves the career appellate staff in the SG’s office as a prime choice. “I’m not at all surprised that they were picked,” says a former attorney in the solicitor general’s office. “If you are serious about winning, you go for the best advocates, not necessarily the best-known names. Furthermore, they probably wanted to depoliticize the case, so they went for career people.” Says Kenneth Geller of the D.C. office of Mayer, Brown & Platt, a former deputy solicitor general who knows Minear and Frederick: “The government is simply picking its best appellate advocates to argue one of its most important appellate cases.” Through a spokeswoman, Waxman declines comment, as do Minear and Frederick. HIGH COURT REGULAR Minear, the senior of the two lawyers, with 40 Supreme Court arguments under his belt, may not find it very hard to get up to speed in the fact-intensive antitrust case. He has already played a role in it. Last year, Minear was a member of the DOJ team that argued unsuccessfully in Supreme Court briefs that the high court should take the Microsoft case on an expedited basis and skip the D.C. Circuit entirely. Although the solicitor general’s office only rarely argues in lower federal courts, there’s plenty of precedent for it, especially in major cases. Just last year, for example, Deputy Solicitor General Edwin Kneedler argued the Elian Gonzalez case in both the U.S. District Court in Florida and the 11th Circuit. “When a very high-profile case seems as if it may eventually land in the Supreme Court, it’s sometimes done,” says Richard Lazarus, director of the Georgetown University Law Center’s Supreme Court Institute and a former assistant to the solicitor general. “Here, since the SG got involved at an earlier stage and had some expertise, it made sense to have them continue with it.” Several veterans of the office say Minear and Frederick couldn’t be better qualified for the assignment — even though neither is particularly known for his antitrust expertise. Minear has been in the SG’s office since 1985 and was named senior litigation counsel to the solicitor general in 1998. He received his undergraduate degree in chemical engineering from the University of Utah in 1977. In 1982, Minear got both a J.D. and a master’s degree in natural resources from the University of Michigan. He was a trial attorney in the Environment and Natural Resources Division at Justice before joining the SG’s office. Last year, Minear co-taught a course at Georgetown Law Center that dealt with the workings of the solicitor general’s office. “Jeff is careful, nonpolitical, and analytical,” says Roy Englert Jr., a former deputy solicitor general now at Mayer, Brown. “His strength is in breaking complicated concepts down and making them understandable.” Another former lawyer in the SG’s office says that although Minear has a strong interest in environmental issues, “he is often called upon by the office to handle particularly difficult assignments. His interest in Indian law and environmental law can be expanded to any form of complex and difficult litigation.” Minear recently achieved a favorable result in the Supreme Court against significant odds. Arguing for the United States as an amicus curiae, he successfully got the high court to reverse the 4th Circuit and allow a private group to bring an environmental case under the Clean Water Act in Friends of the Earth Inc. v. Laidlaw Environmental Services (TOC) Inc. The Supreme Court ruled 7-2 last January that the case was not moot and that the plaintiff had standing, and it distinguished the case from several recent opinions written by Justice Antonin Scalia in which the citizens’ claims were rejected on standing grounds. Minear’s style of argumentation is universally described by those who have seen him as low-key, careful, and confidence-inspiring. Frederick, who has argued 11 cases at the Supreme Court since he joined the SG’s office in 1996, gets similarly good reviews. Frederick has a bachelor’s degree from the University of Pittsburgh and a J.D. from the University of Texas, was a Rhodes scholar, and clerked for Supreme Court Justice Byron White. Georgetown’s Lazarus says Frederick “is not only a skilled oral advocate, but also a skilled historian who wrote a wonderful book on the 9th Circuit.” Frederick’s book, “Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891-1941,” was published by the University of California Press in 1994. Before joining the SG’s office, Frederick was counselor to the Justice Department’s inspector general.

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