And The Nominee For Solicitor General Is....
The long and winding road to a nominee for Solicitor General of the United States is about to come to an end.
Noel J. Francisco (by Jones Day/YouTube)
The long and winding road to a nominee for Solicitor General of the United States is about to come to an end. According to sources familiar with the process, Noel Francisco, the former Jones Day partner who is currently serving as acting Solicitor General, will be nominated by President Donald Trump to serve as SG, the federal government’s top lawyer before the U.S. Supreme Court. The announcement could come as early as today.
We have, in a sense, come full circle. Back in December, I identified Francisco and his fellow Jones Day partner, Greg Katsas, as the two leading contenders for the post. With Katsas over in the White House Counsel’s office, that would seem to leave Francisco as the last man standing.
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But that is not, of course, how this whole fascinating process unfolded. Francisco and Katsas got replaced by two different frontrunners, George Conway of Wachtell Lipton and Chuck Cooper of Cooper & Kirk. Cooper seemed to be on the brink of clinching the brass ring, until he made a surprise withdrawal at the eleventh hour.
The speculation then turned to other contenders, including Miguel Estrada of Gibson Dunn, Chris Landau of Kirkland & Ellis, and Kannon Shanmugam of Williams & Connolly. Estrada, a former D.C. Circuit nominee, seemed to emerge as the frontrunner — until he said “no thanks” in a rather colorful way. [UPDATE (4:50 p.m.): Actually, according to a source familiar with the process, Estrada was never in the running — although Landau and Shanmugam were.]
If you got exhausted by this whole confounding process, you’re not alone. The powers that be apparently got worn down too — and returned to Francisco, a highly respected Supreme Court and appellate advocate who is eminently qualified for the post.
So now this riveting drama has finally reached its conclusion. Congratulations to Noel Francisco on his imminent nomination as the next Solicitor General of the United States!
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P.S. Federal government groupies, you’re right: pursuant to the Vacancies Reform Act of 1998, Francisco cannot be nominated as the Senate-confirmed SG while serving as acting SG. So he will have to be parked somewhere else in the Justice Department for a spell before he can be officially put up as SG.
UPDATE (4:52 p.m.): If confirmed, Noel Francisco would be the first Asian American to serve as solicitor general. As I’ve mentioned previously, Francisco’s father is of Filipino ancestry. Congrats again to my fellow Filipino American!
UPDATE (6:03 p.m.): To be clear, Francisco would be the first Asian American to serve as a Senate-confirmed solicitor general. As one reader recently reminded me, Neal Katyal served as acting solicitor general for more than a year, from May 2010 to June 2011.
UPDATE (6:15 p.m.): Here is the Reuters report, by Steve Holland and Lawrence Hurley, on Francisco’s imminent nomination. They cite two sources, one who spoke on Monday and one who spoke today, and review Francisco’s impressive résumé and prior SCOTUS arguments (which I previously discussed here).
UPDATE (11:21 p.m.): Our scoop is now official, as noted by Chris Geidner on Twitter:
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Congratulations also to the other lawyers nominated to prominent posts: Courtney Simmons Elwood, to serve as general counsel of the CIA; Jeffrey A. Rosen, to serve as deputy secretary of the transportation department; John J. Sullivan, to serve as general counsel of the defense department; and Ajit Pai, to serve as a member of the FCC (he’s already chair, but this ensures that he’ll remain on the commission through Trump’s four-year term).
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
