Trump’s New SCOTUS Lawyer Just Got Confirmed. Now He Has To Defend The Travel Ban

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Kevin Daley Supreme Court correspondent
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Noel Francisco, President Trump’s nominee for solicitor general, was confirmed by the Senate Tuesday, making him the federal government’s primary advocate before the U.S. Supreme Court.

He is the first Asian-American confirmed by the Senate to serve as solicitor general.

“Noel Francisco is a great choice for this tough job, and I urge colleagues to join me in supporting him,” Senate Majority Leader Mitch McConnell said on the chamber floor prior to his confirmation.

The solicitor general is tasked with representing most federal agencies in Supreme Court litigation, and often files amicus (or “friend of the court”) briefs in cases where the government has a significant interest. Even if the U.S. is not party to a case the high court is hearing, the justices will often ask for the solicitor general’s views and consider his opinion in their deliberations. As a result, the solicitor general’s office is typically involved in some capacity with two-thirds of the cases the Court decides annually, prompting some to refer to the SG as the “10th justice.”

Francisco’s first significant task will be the defense of the Trump administration’s executive order on refugees and migrants. The justices will hear arguments in Trump v. IRAP and Trump v. Hawaii, the two major challenges to the order, on Oct. 10, during the second week of the new term. Heretofore, acting Solicitor General Jeffrey Wall has represented the administration during challenges to the directive, though Francisco briefly served as acting solicitor general in the earlier days of the administration.

In that capacity, he coordinated the defense of the first version of the order Trump issued in late January. His participation in that litigation featured prominently during his confirmation hearing before the Senate Judiciary Committee. Sen. Dianne Feinstein of California, the ranking Democrat on the panel, charged that his work on the first order shows Francisco will be subservient to the White House.

“Mr. Francisco defended that ban in federal court and the court held that ban was flawed,” she said. “Bottom line, I am concerned he will approach his role as President Trump’s solicitor general and not the solicitor general of the United States.”

He went on to clear the committee on a party line vote of 11-9.

Francisco has argued before the Supreme Court on several occasions, including two high-profile cases from recent sittings. He represented former Virginia Gov. Bob McDonnell in a case concerning the scope of a federal anti-corruption law, where he secured a unanimous ruling in the disgraced Republican’s favor. He also represented the Little Sisters of the Poor in their challenge to the Affordable Care Act’s contraception mandate. That case was sent back to a lower court in May 2016, in hopes the parties could reach a compromise.

Prior to joining the U.S. Department of Justice, Francisco was a partner in the D.C. offices of Jones Day. The Trump-aligned firm has staffed key legal positions throughout the administration.

In addition to his private sector work, Francisco served in the White House counsel’s office during the administration of President George W. Bush. He was a member of the legal team representing Bush during the bitter recount fight in Florida during the 2000 presidential election. He is a graduate of the University of Chicago Law School and clerked for the late Justice Antonin Scalia.

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