The (Not So) New Face of the OSG

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Surprisingly, or perhaps not so surprisingly, the search for the new Solicitor General led to one of the individuals discussed as a likely candidate early on in the process.  In the interim, a bevy of names were floated as possibilities including attorneys Chuck Cooper, George Conway, and Miguel Estrada. But as George Conway’s name faded away and Chuck Cooper and Miguel Estrada both publicly distanced themselves from the position, it began to look as if it might take months before the Trump Administration nominated a candidate (while this sounded like a long time to ruminate over a pick historically this timeline was on par with those of past administrations).  Then on March 7th, Acting Solicitor General Noel Francisco was announced as the nominee.

Francisco held the post of Acting and Principal Deputy Solicitor General since  January 23rd 2017, and was one of the many Jones Day attorneys brought in to help run the Trump Administration’s Department of Justice.  His name faded into the background as other contenders for the role were examined, but ultimately the post became Francisco’s.  Francisco fits the bill quite acutely as he worked within the Office of Attorney General under President George W. Bush from 2001 through 2003 and in the Office of Legal Counsel in the Justice Department from 2003 through 2005.  But let’s dig deeper into background of the man now charged as the primary litigator for the United States.

Francisco was a University of Chicago Law graduate (as well as undergraduate) before clerking in the Fourth Circuit for Judge Luttig and then in the Supreme Court for Justice Scalia.  Aside from his government work, Francisco has been a litigator at Jones Day where he became an active member of the Supreme Court Bar.

While with Jones Day he was successful in his arguments before the Court.  Francisco represented Noel Canning in NLRB v. Canning securing a victory for his client that sought to invalidate an order of the National Labor Relations Board because three of the five members that voted on the order were purportedly wrongfully appointed.  The Court held that even minimal pro forma sessions of Congress were sufficient to prevent the President from making valid recess appointments.

Then Francisco represented the petitioner in Zubik v. Burwell, a case looking at the right of religious organizations to opt out of contraception coverage for their employees as required by the most recent healthcare mandate.  In this case the Justices were likely evenly split due to the Court’s eight Justice composition at the time (which was underscored by the Court’s earlier request for further briefing of the issues before issuing a decision).  Francisco secured a per-curiam judgment vacating and remanding the case to the lower court thus overturning an unfavorable lower court decision.

In his most recent oral argument prior to his appointment under President Trump, Francisco won a unanimous victory for his client, former governor Bob McDonnell in McDonnell v. United States.  In this case which was seen by some as an extension of Citizens United, the Justices held that even though the former governor received gifts in return for benefits from the governor, the governor’s acts did not constitute “official actions.”

Although Francisco has yet to argue a case before the Court as Acting Solicitor, in this capacity he has his name on multiple briefs before the Court as counsel of record. These include merits stage party briefs in cases like Impressions v. Lexmark, merits stage amicus briefs as in Sandoz v. Amgen, and petitions for writs of certiorari such as that in Sessions v. Shuti.  According to the Department of Justice’s website, Francisco is now listed as counsel of record in his Acting SG capacity on thirty-nine Supreme Court briefs.

But to learn more about Francisco, we must look to his work in the private sector outside of the Supreme Court.  This work helps to explain why he may have been seen as an attractive candidate to the Trump Administration.  Most prominently, Francisco was regular defense counsel to the tobacco industry and especially for R.J.R Reynolds Tobacco. He also helped defend a slew of clients in challenges against the ACA’s contraception mandate in lower courts.

This includes representation of at least ten other clients aside from Zubik against the ACA mandate such as Priests for Life, Wheaton College, Autocam Corp., and the Diocese of Cheyenne.  Francisco participated as defense counsel in multiple class action cases involving the tobacco industry in big name cases like R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., United States v. Philip Morris USA Inc., and In re Tobacco Cases I.  Excluding the many motions courts ruled on in these tobacco cases, Francisco was listed on at least eighteen such judicial opinions as counsel for either a merits party or an amicus.

Looking at the aggregate figures of cases where Francisco defended parties or represented amici in the lower courts, much of Francisco’s work was in the federal courts of appeals.

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As you can see, Francisco’s work was primarily in the D.C. Circuit as well as in the Sixth Circuit.  He was listed on decisions from all circuits aside from the Fifth, Eleventh, and Federal Circuits.  He also made regular appearances in federal district courts.

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Here was see the basis of his representation is much more heavily skewed towards cases in the District of Columbia as the number of cases he was listed on in the District Court for the District of Columbia more than doubles the number of opinions he was listed on in the district court he participated in the next most often.

Finally, his appearances and representations in state courts are the most minimal of the three types of courts.

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Francisco is listed on multiple state court decisions along with his several defenses of RJR Tobacco in Florida state courts.  Finally, Francisco also assisted in litigation in In re Santa Fe Natural Tobacco Co. Mktg. & Sales Practice Litig. which was heard by the Judicial Panel on Multi-District Litigation.

Francisco’s generalized success also likely increased his stock as a potential SG nominee.  Where Francisco represented a private client and clearly won or lost the case, he only was on the losing side in a handful of instances and two of these were representation of Bob McDonnell (who Francisco eventually successfully defended before the United States Supreme Court) in the Eastern District of Virginia before Judge Spencer and in the Fourth Circuit with an opinion by Judge Thacker.

Given Francisco’s regular successful representations of conservative clients, track record of work with the US Government under Republican Presidents, clerkships with highly regarded conservative judges like Justice Scalia, and multiple appearances before the United States Supreme Court in his private capacity, his nomination to the post of Solicitor General should not be seen as a surprise even if his name was not always the most discussed during earlier conversations of who might garner the nomination.


On Twitter:@AdamSFeldman

Research support from: @SamuelPMorse

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