What to Know About Noel Francisco as the New SCOTUS Term Nears
The U.S. Supreme Court's fall term begins on Oct. 2. Noel Francisco, newly confirmed as U.S. solicitor general, has just days to prepare. Of course, it's likely Francisco, formerly a top appellate lawyer at Jones Day, hasn't been thinking about the cases and issues that the justices will confront—and he will argue—this term. Here's a snapshot of things to know about Francisco and matters on his plate as he prepares to step up to the lectern at the high court.
September 20, 2017 at 02:44 PM
32 minute read
The U.S. Supreme Court's fall term begins on Oct. 2. Noel Francisco, newly confirmed as U.S. solicitor general, has just days to prepare.
Of course, it's likely Francisco, formerly a top appellate lawyer at Jones Day, hasn't been thinking about the cases and issues that the justices will confront—and he will argue—this term. Francisco had been sidelined since his nomination—serving not as acting solicitor general but rather as senior adviser to the associate attorney general. Former Sullivan & Cromwell partner Jeffrey Wall had led the SG's office on briefing in the high court.
At his confirmation hearing in May, a day after President Donald Trump fired FBI Director James Comey, Francisco pledged “independence and candor.” Francisco, confirmed Tuesday by a vote of 50-47, becomes the first Senate-confirmed solicitor general of Asian-American heritage. U.S. Attorney General Jeff Sessions said Francisco will be “a central figure in our commitment to the classical understanding of law and jurisprudence.”
Francisco was part of a wave of Jones Day lawyers who joined the Trump administration in the early days. Several top Justice Department lawyers—including Chad Readler in the Civil Division and Hashim Mooppan, also in Civil—were also a part of that defection. Jones Day's Eric Dreiband is the pending nominee for the DOJ's Civil Rights Division.
Jones Day publicly touted Francisco's confirmation. “Jones Day has a long history of having its lawyers serve the nation in important public service positions. We are very proud of Noel and his appointment to serve as solicitor general,” Stephen Brogan, managing partner of Jones Day, said in a statement. “Noel is a proven, effective advocate in the courtroom, as well as a person of great integrity. I am confident that he will serve with distinction as solicitor general.”
Here's a snapshot of things to know about Francisco and matters on his plate as he prepares to step up to the lectern at the high court.
'Focus on the Florist, on the Baker'
Francisco's taking over an office that hasn't been without tension in the Trump era.
Sessions overcame opposition to the Justice Department's participation in support of a Colorado baker who refused to make a wedding cake for a gay couple. The government filed a friend-of-the-court brief this month—in support of the baker, Jack Phillips—that said the First Amendment trumps the Colorado anti-discrimination law that's at the heart of the case. Writing on Twitter, former Obama-era Justice Department lawyer Marty Lederman said the amicus brief marked the first time the Justice Department had supported a constitutional exemption to anti-discrimination law. None of the career deputy solicitor generals in the office signed the brief. DOJ officials disputed there was any conflict over the filing of the government's brief.
Francisco wasn't on the brief himself—Wall's name appeared as acting solicitor. But Francisco has talked about “sympathetic plaintiffs” in the mold of Phillips, who is represented by the conservative group Alliance Defending Freedom. During his confirmation proceedings, senators questioned Francisco in writing about a Heritage Foundation speech in which he advocated the need for challengers to the Affordable Care Act to “build powerful cases” with “sympathetic plaintiffs.” He noted key plaintiffs to Obamacare included a group of nuns, Catholic Charities and “inner city” Catholic schools. (Francisco earlier argued on behalf of Roman Catholic bishops, dioceses and schools in Zubik v. Burwell, in which he challenged the contraceptive insurance requirement in the Affordable Care Act.)
“On marriage,” Francisco said in the Heritage speech, “[we] need to do the same. Focus on the florist, on the baker, the sincere small businessmen under attack.” Francisco, responding in writing to a question from senators, said that lawyers who are building cases “should attempt to present both legally and factually persuasive cases.”
Switched Up at the High Court
The Justice Department has switched positions in several key cases in the high court—but Francisco has vowed not to make a habit of it.
“Although there are times when it is appropriate for the United States to change litigating positions, I believe that, if the United States changes positions too often and without a sound basis for doing so, then there is a risk of undermining credibility with the courts,” Francisco told senators in a written response during his confirmation proceedings. Francisco said it would be appropriate for the United States to change its position “when the underlying policy at issue has changed.” Switching the position of the United States, he said, “should be done infrequently in order to foster continuity.”
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