What to Know About Noel Francisco as the New SCOTUS Term Nears

Francisco has been a frequent speaker on panels and podcasts of the conservative lawyers’ organization. On a panel last November about enforcing the Second Amendment decision in District of Columbia v. Heller, he revealed his own gun experiences. “I have fired a firearm three times in my life. One was when I was in college and I was a re-enactment civil war soldier where we were literally firing blanks. The second time was when I went skeet shooting during law school and I can assure you I hit nothing but air, and the third time was when I was about 12 years old and we had BB guns and I shot a bird and I winged it the first time and so I had to put it out of its misery and it was one of the most miserable experiences of my life.”

Nonetheless, he added, the Second Amendment “in addition to setting forth a right in and of itself is a structural constraint on the exercise of governmental power much in the way separation-of-powers principles are.”

Asked in writing during confirmation proceedings whether he agrees with the Federalist Society’s views, Francisco told senators: “I am not in a position to speak to any specific views espoused by the Federalist Society.” He noted that he has also participated in events hosted by the liberal counterweight American Constitution Society. He also told senators that his “personal policy and political views would be irrelevant; the decisions of the solicitor general must reflect the long-term interests of the United States.”

Recusal Questions

There’s a pending lawsuit in Washington against the Justice Department that seeks public records about Francisco’s decision to recuse—and then rejoin—litigation over the Trump administration’s travel ban. Francisco was acting solicitor general at the time when he stepped aside. Francisco is recused in the dispute over the constitutionality of the Consumer Financial Protection Bureau’s single-director structure—a case that is almost assured to reach the Supreme Court in the next year. The U.S. Justice Department in March switched positions in a CFPB case that is pending in the U.S. Court of Appeals for the D.C. Circuit. Wall, the acting SG, said in a letter to Congress that the department had concluded the for-cause removal provision is unconstitutional and that the president should have the power to remove the agency’s director at will.

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