Senate Confirms Noel Francisco as Solicitor General

This column by ACRU General Counsel Ken Klukowski was published September 19, 2017 by Breitbart.

WASHINGTON, DC — Senators on Tuesday confirmed Noel Francisco as solicitor general of the United States — the nation’s top lawyer before the U.S. Supreme Court — ending weeks of delays and obstruction, just days before the Trump administration will begin arguing a host of major cases before the justices. The vote was shockingly narrow with a tally of 50-47.

The Court will hit the ground running when it begins its 2017 annual term on October 2, which will include cases ranging from religious liberty versus LGBT claims of discrimination, to voting rights and redistricting, to immigration. Out of several immigration cases, the most prominent is Trump v. IRAP, consolidating two challenges to President Donald Trump’s temporary travel ban contained in Executive Order 13780.

The solicitor general is the Number-Four at the U.S. Department of Justice (DOJ), and leads a 20-lawyer team comprising one of the highest-powered law firms in America. The Office of the Solicitor General (OSG) exclusively represents the United States before the nation’s highest court, participating in two-thirds of the almost 80 cases on the Supreme Court’s argument docket each year, an enormous role for which the solicitor general is nicknamed the “tenth justice” on the nine-justice Supreme Court. The solicitor general also has supervisory authority over all federal appeals.

At age 48, Francisco has had a stellar career. After graduating from law school at the University of Chicago, he clerked for the famed Judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit, then Justice Antonin Scalia on the Supreme Court. He later served as an associate counsel in the White House Counsel’s Office for President George W. Bush, and then as a deputy assistant attorney general at DOJ’s legal-genius team, the Office of Legal Counsel (OLC).

Francisco has earned a reputation as one of the nation’s premier constitutional litigators. His three greatest victories have all been Supreme Court wins: unanimously winning a case striking down President Barack Obama’s recess appointments in NLRB v. Noel Canning, ending the overreach in the federal bribery statute in McDonnell v. United States, and protecting the nuns of the Little Sisters of the Poor from providing abortion services under Obamacare in Zubik v. Burwell.

President Trump initially named Francisco the principal deputy solicitor general to serve as the Number-Two in OSG under famed Supreme Court litigator Chuck Cooper, a former law clerk to William Rehnquist who served as head of OLC under two of the conservative movement’s most venerated icons: President Ronald Reagan and Attorney General Ed Meese. Cooper then became one of the most sophisticated political operators in Washington, as well as one of the most formidable lawyers in the nation.

The dismay conservatives rightly felt when Cooper pulled out of consideration for solicitor general turned to relief when President Trump indicated in March that he would instead elevate Francisco to the top spot at OSG. The president then appointed another conservative stalwart, former Clarence Thomas law clerk and OSG alumnus Jeffrey Wall, as principal deputy solicitor general in Francisco’s place. As such, Wall has been running OSG as acting solicitor general while Francisco has been waiting for a final Senate confirmation vote, and earned high praise for his handling of several high-profile legal disputes during that time.

Conservatives are understandably frustrated — but not surprised — that Francisco was confirmed by a vote of only 50-47, with Senate Democrats voting as a block against him as a proxy of President Trump, Attorney General Jeff Sessions, and the president’s entire legal team. The former partner of global powerhouse law firm Jones Day has impeccable credentials including his education, experience, a host of major legal victories that are universally acknowledged to be brilliant, and not even a hint of scandal.

The solicitor general serves at the pleasure of the president, and has offices both at DOJ headquarters and right outside the courtroom at the Supreme Court.