Noel J. Francisco, Trump’s solicitor general pick, fought Obama on recess appointments

President Trump’s pick for solicitor general — the government’s chief lawyer to the Supreme Court — has been there before.

Noel J. Francisco won a 9-0 spanking of President Obama over his illegal recess appointments, fought the administration to a draw on the Obamacare contraceptive mandate and won the release of former Virginia Gov. Bob McDonnell after convincing the justices that the corruption charges were bogus.

In each of those cases, he went up against Mr. Obama’s solicitor general. Now, if confirmed by the Senate, he’ll be on the inside, trying to preserve policies of Congress and Mr. Trump against enterprising lawyers.

During his several high-profile battles with the Obama administration, Mr. Francisco won a reputation as a skilled arguer and cagy lawyer.

Neal Katyal, who acted as solicitor general of the United States under Mr. Obama, called Mr. Francisco a “fabulous oral advocate,” and told him to “enjoy one of the greatest jobs in the world.”

“Noel and I have been close friends for over two decades, and I know him personally to be a brilliant lawyer and a principled conservative,” said Sen. Ted Cruz, a Texas Republican who worked with Mr. Francisco as part of President George W. Bush’s legal team during the 2000 vote recount in Florida.

Michael A. Carvin, a partner at Jones Day, where Mr. Francisco had worked until jumping to the Trump administration, described him as a “very skilled appellate lawyer” who paid attention to the big issues he’ll face as solicitor general.

“His cases in private practice involved making sure that separation of powers and other constitutional principles were adhered to,” Mr. Carvin said.

One of those cases was the recess appointments battle, which saw Mr. Francisco deliver a severe blow to Mr. Obama.

The president, fed up with senators refusing to ratify a number of key appointments, took matters into his own hands in early 2012.

Despite the Senate meeting every three days in pro forma sessions to deny him his recess appointment powers, Mr. Obama declared that the Senate was actually in a recess, and made three appointments to the National Labor Relations Board and another to the Consumer Financial Protection Bureau.

Noel Canning, a bottling company that got into a dispute with the NLRB, sued, arguing the board’s new members appointed by Mr. Obama were illegal.

Mr. Francisco took the case first to the U.S. Circuit Court of Appeals for the District of Columbia, where he won a 2-1 decision eviscerating presidential recess powers.

On appeal the Supreme Court restored some of the president’s powers, but in a 9-0 ruling said Mr. Obama’s appointments to the NLRB were indeed illegal.

In the McDonnell case, Mr. Francisco received a unanimous opinion from the Supreme Court, vacating his client’s conviction on 11 counts of corruption.

The 4th U.S. Circuit Court of Appeals had affirmed the conviction, but the high court justices sided with Mr. Francisco.

And in a case known as Zubik v. Burwell, Mr. Francisco argued that religious charities such as the Little Sisters of the Poor shouldn’t be forced to have any role in whether their employees obtained contraceptive coverage as part of Obamacare.

After hearing oral arguments, the justices demanded both sides try to come up with a compromise, and tossed a series of cases back to lower courts to rehear.

Mr. Francisco has been serving as acting solicitor general under Mr. Trump, where he was leading the defense of the president’s extreme vetting travel policy until his old law firm, Jones Day, got involved in the case by serving as lawyers for a group looking to file an amicus brief.

Several legal analysts said they suspected the defense would have gone better had Mr. Francisco continued to be involved.

Glen Nager, Jones Day’s client affairs partner, applauded Mr. Francisco’s nomination.

“Noel is a phenomenal appellate advocate, and we are very proud that President Trump has recognized his talents and will nominate him to serve as the country’s next solicitor general,” said Mr. Nager.

Mr. Francisco attended the University of Chicago Law School and clerked for Justice Antonin Scalia.

But Dan Goldberg, legal director at the progressive Alliance for Justice, isn’t applauding Mr. Trump’s nominee, calling Mr. Francisco’s record “troubling.”

“At a time when there are serious questions about the independence of Attorney General [Jeff] Sessions and the Trump Justice Department, and the president has repeatedly demonstrated his contempt for our Constitution, it is essential that the Senate thoroughly review Mr. Francisco’s record to ensure his commitment is to our Constitution and nation’s laws rather than to any person, ideology or party,” said Mr. Goldberg.

 

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