Analysis
4 Things To Know About Trump's Pick For Solicitor General
Law360, New York (March 8, 2017, 8:37 PM EST) --
While the solicitor general has historically worked outside of the public eye, the latest nominee for the job of representing the federal government at the U.S. Supreme Court, Noel Francisco, shouldn't expect anonymity.
Crafting responses to challenges to federal policies and advising the president and the attorney general, the SG has historically drawn public scrutiny only when personally arguing a high-profile case. But with the new president promising to dismantle regulations and upend legal and governmental conventions, appellate experts expect the next solicitor to be knee-deep in complex and politically fraught cases.
After a circuitous route to the nomination, President Donald Trump on Monday settled on Francisco, a respected appellate lawyer who has carried the acting SG title since his move from Jones Day in January.
Here are four things you should know about the solicitor general nominee:
A Short But Notable High Court Record
Francisco doesn’t have a long track record in front of the high court, arguing a total of just three cases, but they’ve all been notable.
In a landmark case in April 2016, Francisco successfully represented former Virginia Gov. Bob McDonnell, who had been convicted for bribery along with his wife two years earlier, after accepting lavish gifts in exchange for promoting a tobacco-based health supplement.
The high court ruled unanimously 8-0 to vacate McDonnell’s conviction, saying the government’s application of a broadly defined “official act” was too broad and that it raised constitutional concerns.
Francisco in January 2014 also handled oral arguments for the closely watched challenge brought against President Barack Obama’s recess appointments to the National Labor Relations Board. He convinced all the justices that Obama’s appointments didn't pass constitutional muster because the U.S. Senate was not in recess when they were appointed.
And in May 2016, the court issued a per curiam decision on the Affordable Care Act’s contraception mandate, vacating several circuit court rulings and directing the Obama administration and the religious nonprofit petitioners to work out a compromise. Francisco was on a Jones Day team representing one set of petitioners among several in that case; he joined Paul Clement at the March oral arguments for the petitioners.
Francisco Wasn’t Trump’s First (or Second) Choice
Francisco’s path to the nomination wasn’t a straight line. He was initially tapped for the key “political” principal deputy job focused on state and private party cases. As the number two, he then assumed the acting title as the White House vetted candidates for the top job, the only one in the office requiring Senate confirmation.
But Trump’s reported front-runner, Chuck Cooper of Cooper & Kirk PLLC, declined the job early last month, pointing to the tough confirmation reception given to his close friend and now attorney general, Jeff Sessions.
Gibson Dunn partner Miguel Estrada, who was among a handful also rumored to be under consideration, also bowed out, saying he would never accept a job requiring confirmation or “willingly place myself in any situation” requiring civility with Sen. Chuck Schumer, D-N.Y.
The SG announcement came without fanfare Tuesday, with Francisco getting second billing on a White House press release to Courtney Elwood, the nominee for general counsel at the CIA, and above the deputy secretary of the U.S. Department of Transportation. Jeffrey Wall of Sullivan & Cromwell LLP, a former clerk for U.S. Supreme Court Justice Clarence Thomas and assistant in the SG's office, is reportedly in line for the principal deputy job.
A Loyal Justice Scalia Clerkship Alum
Many who clerked for former U.S. Supreme Court Justice Antonin Scalia revered the conservative judge, and Francisco is no exception.
In a talk to the conservative Heritage Foundation last year following Justice Scalia’s death, Francisco mourned the loss of “the single best ... defender of our view of the world that most of us in this room have known and may ever know.”
Francisco, who clerked for Justice Scalia in 1997 and 1998, identified his favorite opinion as the judge’s lone dissent in a 1996 decision that struck down male-only admissions at the Virginia Military Institute.
Justice Scalia “articulated a philosophy grounded in separation of powers that made clear that, ultimately, the only views that mattered in a democratic republic are the views that are enacted into the positive law through our republican form of government,” Francisco said. “Anything else lacked democratic legitimacy.”
The Ninth Circuit Immigration Ban Side Step
If Francisco’s first foray in defending the Trump administration is any indication, he’ll have an interesting run as SG if confirmed.
Just weeks after signing up with the new administration, Francisco and his acting second, ex-Jones Day lawyer Chad Readler, declined to sign onto a reply brief in a Ninth Circuit challenge to Trump’s immigration order. The reason: Jones Day also represents a group of law professors opposing the executive order. The U.S. Department of Justice said without elaborating that Francisco had not signed on out of an “abundance of caution.”
With the DOJ offering no further details, ethics experts struggled to explain how Jones Day’s work for clients who filed a challenge after Francisco had left the firm could raise the risk of a conflict, or even be used to argue a perceived conflict.
Francisco and Readler, who was named principal deputy assistant attorney general in the DOJ’s civil division, both rejoined the case in later briefs, without further explanation to the court.
--Additional reporting by Ben James and Jeff Overley. Editing by Pamela Wilkinson and Breda Lund.
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| Noel Francisco |
Crafting responses to challenges to federal policies and advising the president and the attorney general, the SG has historically drawn public scrutiny only when personally arguing a high-profile case. But with the new president promising to dismantle regulations and upend legal and governmental conventions, appellate experts expect the next solicitor to be knee-deep in complex and politically fraught cases.
After a circuitous route to the nomination, President Donald Trump on Monday settled on Francisco, a respected appellate lawyer who has carried the acting SG title since his move from Jones Day in January.
Here are four things you should know about the solicitor general nominee:
A Short But Notable High Court Record
Francisco doesn’t have a long track record in front of the high court, arguing a total of just three cases, but they’ve all been notable.
In a landmark case in April 2016, Francisco successfully represented former Virginia Gov. Bob McDonnell, who had been convicted for bribery along with his wife two years earlier, after accepting lavish gifts in exchange for promoting a tobacco-based health supplement.
The high court ruled unanimously 8-0 to vacate McDonnell’s conviction, saying the government’s application of a broadly defined “official act” was too broad and that it raised constitutional concerns.
Francisco in January 2014 also handled oral arguments for the closely watched challenge brought against President Barack Obama’s recess appointments to the National Labor Relations Board. He convinced all the justices that Obama’s appointments didn't pass constitutional muster because the U.S. Senate was not in recess when they were appointed.
And in May 2016, the court issued a per curiam decision on the Affordable Care Act’s contraception mandate, vacating several circuit court rulings and directing the Obama administration and the religious nonprofit petitioners to work out a compromise. Francisco was on a Jones Day team representing one set of petitioners among several in that case; he joined Paul Clement at the March oral arguments for the petitioners.
Francisco Wasn’t Trump’s First (or Second) Choice
Francisco’s path to the nomination wasn’t a straight line. He was initially tapped for the key “political” principal deputy job focused on state and private party cases. As the number two, he then assumed the acting title as the White House vetted candidates for the top job, the only one in the office requiring Senate confirmation.
But Trump’s reported front-runner, Chuck Cooper of Cooper & Kirk PLLC, declined the job early last month, pointing to the tough confirmation reception given to his close friend and now attorney general, Jeff Sessions.
Gibson Dunn partner Miguel Estrada, who was among a handful also rumored to be under consideration, also bowed out, saying he would never accept a job requiring confirmation or “willingly place myself in any situation” requiring civility with Sen. Chuck Schumer, D-N.Y.
The SG announcement came without fanfare Tuesday, with Francisco getting second billing on a White House press release to Courtney Elwood, the nominee for general counsel at the CIA, and above the deputy secretary of the U.S. Department of Transportation. Jeffrey Wall of Sullivan & Cromwell LLP, a former clerk for U.S. Supreme Court Justice Clarence Thomas and assistant in the SG's office, is reportedly in line for the principal deputy job.
A Loyal Justice Scalia Clerkship Alum
Many who clerked for former U.S. Supreme Court Justice Antonin Scalia revered the conservative judge, and Francisco is no exception.
In a talk to the conservative Heritage Foundation last year following Justice Scalia’s death, Francisco mourned the loss of “the single best ... defender of our view of the world that most of us in this room have known and may ever know.”
Francisco, who clerked for Justice Scalia in 1997 and 1998, identified his favorite opinion as the judge’s lone dissent in a 1996 decision that struck down male-only admissions at the Virginia Military Institute.
Justice Scalia “articulated a philosophy grounded in separation of powers that made clear that, ultimately, the only views that mattered in a democratic republic are the views that are enacted into the positive law through our republican form of government,” Francisco said. “Anything else lacked democratic legitimacy.”
The Ninth Circuit Immigration Ban Side Step
If Francisco’s first foray in defending the Trump administration is any indication, he’ll have an interesting run as SG if confirmed.
Just weeks after signing up with the new administration, Francisco and his acting second, ex-Jones Day lawyer Chad Readler, declined to sign onto a reply brief in a Ninth Circuit challenge to Trump’s immigration order. The reason: Jones Day also represents a group of law professors opposing the executive order. The U.S. Department of Justice said without elaborating that Francisco had not signed on out of an “abundance of caution.”
With the DOJ offering no further details, ethics experts struggled to explain how Jones Day’s work for clients who filed a challenge after Francisco had left the firm could raise the risk of a conflict, or even be used to argue a perceived conflict.
Francisco and Readler, who was named principal deputy assistant attorney general in the DOJ’s civil division, both rejoined the case in later briefs, without further explanation to the court.
--Additional reporting by Ben James and Jeff Overley. Editing by Pamela Wilkinson and Breda Lund.
