Senate OKs Federalist Society Nominee for US Solicitor General

WASHINGTON (CN) – President Donald Trump’s choice for solicitor general won narrow Senate approval Tuesday, giving the job of arguing for the government in court to a man who spent much of the last decade doing just the opposite.

A longtime attorney with Jones Day, Noel Francisco served as acting solicitor general for the first two months of Trump’s term and was nominated for the position permanently in March. In addition to clerking for U.S. Supreme Court Justice Antonin Scalia in 1997, Francisco served in the White House and Justice Department under President George W. Bush from 2001 to 2005.

Democrats overwhelmingly opposed Francisco’s nomination, but the Senate approved him nonetheless Tuesday in a 50-47 vote.

A large portion of the Democratic opposition to Francisco came from his work as acting solicitor general, when he defended Trump’s executive order banning immigration from seven majority Muslim countries.

California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, pressed Francisco in a written questionnaire about his involvement in drafting the order and then defending it before the U.S. Court of Appeals for the Ninth Circuit.

While Francisco insisted he did not see the order before Trump issued it, he said he was involved in the “the normal process of drafting and revising” a motion to stay the injunction leveled against Trump’s order by a federal judge.

Francisco told Feinstein he stopped signing briefs in the case after Jones Day, the Washington, D.C., firm where he worked for more than a decade, filed an amicus curiae brief.

Defending his involvement in the case, Francisco told Feinstein that advocating for Trump’s executive order was simply part of his job.

“Traditionally, the solicitor general will defend laws passed by Congress when a reasonable legal defense is available, unless the law encroaches on the president’s Article II powers,” Francisco wrote. “I believe that a similar standard applies to executive orders. If confirmed, I will defend the president’s executive orders when a reasonable defense is available, but not otherwise.”

But Feinstein continued to press Francisco in the written questions, asking him how the committee could “have confidence that you will be independent from the president and the White House.”

Francisco said it would be his job to provide “sound, independent legal advice” to the Trump administration. Democrats on the Judiciary Committee remained unconvinced, however, and voted unanimously in June against advancing his nomination to the full Senate.

Democrats also picked at Francisco’s time at Jones Day, pointing to several high-profile Supreme Court cases he argued against the Obama administration. Most notably, Francisco argued for a group of religious nonprofits against the government in Zubik v. Burwell, a case that challenged the contraceptive mandate in the federal health care law.

Feinstein asked Francisco extensively in the questionnaire about his involvement in that case, pressing him to further explain some of the arguments he made to the court, including a statement he made that claimed birth control is “cheap” and “widely available.”

Francisco told Feinstein that he has recused himself from matters that might touch on the Zubik decision, but again told her that the arguments he made before the Supreme Court were simply those that were best for his client.

“More generally, if confirmed, the positions that I advance on behalf of the United States would not be based on the views of my former clients, but instead, on the best interests of the United States,” Francisco said.

In addition to his role in the Zubik case, Francisco represented tobacco companies in a successful challenge to warning labels that the government wanted on cigarette cartons, and he represented the canning company that challenged President Barack Obama’s recess appointments to the National Labor Relations Board.

Sen. Dick Durbin, D-Ill., additionally pressed Francisco on his role in the Federalist Society, a conservative legal advocacy group that has taken on greater importance in judicial and legal nominations during the Trump administration.

Francisco said he first started attending the group’s national convention in 1996, and that he joined “because it hosts interesting and informative events that debate legal issues of interest to me.”

The Federalist Society lists Francisco as an expert on its website.

After Francisco’s confirmation, Attorney General Jeff Sessions issued a statement applauding the Senate’s action.

“Noel is a brilliant and principled lawyer with an excellent record of appellate work,” Sessions said. “His reputation for skillful analysis and clear, forceful advocacy is indisputable, and he has been a consistent advocate for the rule of law and a steadfast defender of the Constitution.

“I am confident that Noel will continue to be a tireless champion for justice and look forward to him being a central figure in our commitment to the classical understanding of law and jurisprudence,” the attorney general added.

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