Trump’s Solicitor General Pick Must Step Aside Before Stepping Up

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By Kimberly Strawbridge Robinson

President Donald Trump’s pick for his top U.S. Supreme Court advocate, former biglaw partner Noel Francisco, has already had a taste of his future job.

He’s been serving as the acting solicitor general during the administration’s search.

But, under the Federal Vacancies Reform Act, he’ll likely have to step away from that post while the Senate considers his confirmation.

Coincidentally, the Supreme Court is currently considering the reach of the requirement that acting officials must step aside.

Whatever the Supreme Court decides in that case won’t affect Francisco though, Cory Andrews, of the free-enterprise Washington Legal Foundation, told Bloomberg BNA March 8. The Washington Legal Foundation filed an amicus brief in the case before the Supreme Court, arguing for a broad reading of the federal statute.

That’s because this is really the “paradigmatic case” in which the acting official must step aside, Brianne Gorod, of the progressive Constitutional Accountability Center, told Bloomberg BNA in a March 8 email. The Constitutional Accountability Center also filed an amicus in the Supreme Court case, but argued in favor of a more limited reading of the statute.

Circumventing Congress

The Federal Vacancies Reform Act, at 5 U.S.C. §3345, details what happens when an officer of an executive agency, whose appointment requires the advice and consent of the Senate, “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

Under the FVRA, the “first assistant” shall perform the duties of the office in an “acting capacity.” The FVRA gives the president flexibility to instead appoint someone else that has sufficient qualifications to fill the position temporarily.

Congress, however, limited the president’s flexibility over whom he could appoint to fill the vacancy on a permanent basis. The person nominated to fill the vacancy on a permanent basis cannot continue to serve in the acting capacity unless they have served as the first assistant for more than 90 days before the vacancy emerged.

That requirement was meant to prevent an “end-run around the Senate confirmation process” by making someone “an acting officer at the same time that he or she is nominated to fill the position permanently,” Gorod said.

Before that 90-day limitation was enacted, “presidents from both political parties circumvented that requirement for decades by filling vacancies for such posts with replacements who would serve indefinitely in an acting capacity,” the Washington Legal Foundation said in a Supreme Court brief.

Not Up for Debate

The reach of that limitation is at the heart of a case currently before the Supreme Court, NLRB v. SW General, Inc., U.S., No. 15-1251, argued 11/7/16 .

The question before the court is whether the 90-day period applies when the president appoints someone in the acting role who isn’t a “first assistant” under the act.

“Ironically, Francisco’s old firm, Jones Day, is the one pressing the case for curbs on the president’s power,” Bloomberg’s Greg Stohr noted in a March 7 article.

But no matter which way the Supreme Court ultimately goes, it won’t affect Francisco’s situation, Andrews said.

That’s because both sides agree that the 90-day limitation applies to Francisco, who is currently serving as the “first assistant,” Gorod said. It’s the one situation that isn’t up for debate, Andrews said.

Francisco was originally tapped to serve as second in command in the role of principal deputy solicitor general, but after several high-profile withdrawals from frontrunners, he was given the nod for the top job.

Civil to Chuck?

The Trump administration isn’t trying to circumvent Congress with Francisco’s nomination, Andrews said.

Francisco was likely intended only to serve on an acting basis temporarily, until the Trump administration picked its permanent nominee.

Francisco was among those rumored as a contender for the solicitor general post early in the process. But his prospects for SG seemed to dim when he was tapped for the deputy position.

That’s the role he’s been in since late January. Francisco has also been serving as the acting SG while the administration looked for a permanent one.

The SG search, however, proved difficult.

For example, one purported front-runner, Miguel Estrada of Gibson Dunn & Crutcher LLP, Washington, withdrew his name from consideration saying in a statement that he’d never willingly place himself in any situation “in which convention requires that” he “be civil to Chuck Schumer” (D-N.Y). Schumer is the Senate minority leader who led the charge to foil Estrada’s appointment to the federal bench in the early 2000s.

In the end, the Trump administration decided to elevate Francisco to the top spot at the solicitor general’s office.

Not Stepping Aside

It’s not the first time a president has looked to the principal deputy solicitor general to permanently fill the vacancy left by an outgoing SG.

Most recently, George W. Bush tapped then-Principal Deputy Solicitor General Gregory Garre, now at Latham & Watkins, Washington, to serve as the acting SG and then permanent SG in 2008.

Garre confirmed, however, that he did not have to step aside from the acting role while Congress was considering his permanent nomination. That’s because Garre had served as the principal deputy solicitor general for several years before taking on the SG position.

In the Meantime

It’s unclear how Francisco’s departure from the acting role will affect the important office.

The office is a small one, made up mostly of career attorneys. But it’s had a lot of shake up in its leadership lately.

The longtime solicitor general for the Obama administration, Donald Verrilli Jr., stepped down in 2016. His principal deputy, Ian Gershengorn, served on an acting basis until Trump’s inauguration. Now Francisco, who’s been at the job since then, will have to step away.

Jeffrey B. Wall, of the venerable Sullivan & Cromwell LLP, Washington, is rumored to be the administration’s pick to serve as the principal deputy solicitor general, and possibly the acting SG.

If that’s the case, Wall “will do a fantastic job of leading the office through any period that” Francisco “is on hold due to his nomination,” Garre told Bloomberg BNA March 8 in an email.

Wall, who is a regular at the Supreme Court, spent five years in the solicitor general’s office before joining Sullivan & Cromwell in 2013.

Wall “knows the office inside out, is highly respected and well-liked in the office, and will be able to hit the ground running,” Garre said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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