Noel Francisco, Trump's Solicitor General Pick, Is Sidelined for Now

Photo: Diego M. Radzinschi / NLJ

The Trump administration didn’t sideline Francisco for any performance reasons. Rather, federal law bars Francisco from serving as the acting head of the office to which he has been nominated to lead on a permanent basis.

President Donald Trump named Francisco as principal deputy solicitor general on Jan. 23. The veteran high court litigator soon assumed the position of acting U.S. solicitor general while the administration considered lawyers for the post. Trump ended the uncertainty on March 7 when he announced his intent to nominate Francisco to be the solicitor general.

Diego M. Radzinschi/ ALM

The “acting” SG title has passed indefinitely to the lawyer Francisco chose as his principal deputy—former Sullivan & Cromwell special counsel Jeffrey Wall.

The change in Francisco’s jobs, even if temporary, may be somewhat frustrating to a veteran appellate lawyer who now must watch from the sidelines as litigation piles up in the federal appellate courts over Trump’s immigration and environmental executive orders.

Wall will continue to form and present the government’s legal position in the appellate courts and the Supreme Court. And Wall could be called on to argue two travel ban cases in May in federal appeals courts in Seattle and Richmond.

Francisco and Wall did not immediately return messages Thursday seeking comment.

The Federal Vacancies Reform Act of 1998, which some experts say only a handful of people really understand, does not allow Francisco to serve simultaneously as acting solicitor general and nominee.

The federal vacancies law had 15 minutes of fame this term in the Supreme Court. The justices in National Labor Relations Board v. SW General were asked: Can a senior agency official appointed to serve as acting head of the same agency continue to serve in this capacity after being nominated by the president to permanently fill the office, even if the officer never served as first assistant to the office? The answer, in a 6-2 decision in March, was no.

The Supreme Court’s decision had nothing to do with Francisco’s stepping aside, according scholars familiar with the Federal Vacancies Reform Act.

Congress passed the vacancy law in 1998 in response to a battle in the Senate over President Bill Clinton’s nomination of Bill Lann Lee to lead the Justice Department’s Civil Rights Division. After the Senate Judiciary Committee thwarted Lee’s nomination, Clinton brought Lee into the Civil Rights Division as deputy. He then relied on the old version of the act to say that when the top position was vacant, the deputy became acting assistant attorney general.

The Senate Judiciary Committee hasn’t yet scheduled Francisco’s confirmation hearing. For now, he’s working in the same office as Jesse Panuccio, a former Foley & Lardner partner and general counsel to Florida Gov. Rick Scott who’s serving as the acting associate attorney general.

The office of associate attorney general oversees such DOJ divisions as antitrust, civil rights, tax and environment and natural resources. The Senate is expected soon to vote on the nomination of Rachel Brand for that post, the third-in-command at Main Justice.

President Barack Obama’s first solicitor general, Elena Kagan, was confirmed in March 2009. She argued her first case that Septemeber in Citizens United v. Federal Election Commission.

Correction: An earlier version of this report misidentified the date of Elena Kagan’s first argument as solicitor general. It was Sept. 9, 2009.