Noel Francisco. (Photo: Diego M. Radzinschi/ALM)



Noel Francisco. (Photo: Diego M. Radzinschi/ALM)

If any U.S. Supreme Court justices were watching Wednesday’s confirmation hearing for solicitor general nominee Noel Francisco, they were almost certainly comforted by his remarks, especially his nod to the position’s “special duty of independence and candor” to the high court.

Francisco sailed through the Senate Judiciary Committee hearing, even though some senators appeared preoccupied by President Donald Trump’s Tuesday firing of FBI director James Comey. But any anger over the firing did not color the questioning of Francisco, formerly a Jones Day partner.

Several senators noted that Francisco would be the first U.S. Senate-confirmed solicitor general of Asian-American heritage. His father left the Philippines in 1935 and settled in Oswego, New York, where Noel Francisco was born in 1969. Oswego, he said, “welcomed my father … with open arms.”

Another poignant moment in the hearing came when Sen. Mike Lee, R-Utah, asked questions that showed his deep knowledge of the office of solicitor general. Lee’s father, Rex Lee, served as solicitor general in the Reagan administration, and the senator once recalled that as a child, “It was normal for us to discuss the presentment clause over ­brussels sprouts at the dinner table.”

Lee asked Francisco about the process by which the solicitor general determines the interest of the United States in a given case and whether the case should be appealed. Based on his brief period earlier this year as acting solicitor general, Francisco said, “While the solicitor general does play an important role” in making those decisions, “he or she has an enormous amount of assistance” from lawyers throughout the federal government.

The solicitor general “plays a special role” at the intersection of all three branches of government, Francisco told the committee, and he praised the separation of powers that “our framers understood to be the surest bulwark of liberty.”

He acknowledged that the solicitor general “does of course serve as an attorney for the president,” but said “he or she is also responsible for defending the laws passed by this body when they are challenged in court.” Francisco added, The Department of Justice’s goal is not just to win but to insure that justice is served.”

Asked by committee chairman Sen. Chuck Grassley, R-Iowa, if he would be able to defend acts of Congress with which he personally disagreed, Francisco replied, “Absolutely, senator.” He qualified the answer slightly, as past solicitors general have done, pledging he would defend statutes “whenever a reasonable argument can be made” in their favor, except for “the very narrow category” of laws that improperly impinge on the president’s powers under Article II of the Constitution.

Famed First Amendment lawyer Floyd Abrams, senior counsel at Cahill Gordon & Reindel in New York, gave Francisco an unexpected boost with a letter of endorsement that Sen. Ted Cruz, R-Texas, read into the record.  Cruz described Abrams as “a renowned liberal, a man of the left, a Democrat.”

Reading from the letter, Cruz quoted Abrams as saying that Francisco would represent the Justice Department and the nation “with skill, with honor, and in a manner that demonstrates his willingness, even insistence, to enforce and abide by the Constitution and the other laws of our nation with independence as well as with great ability.” Abrams said in the letter that he had worked with Francisco in numerous appeals over the years.

During the hearing, no mention was made of litigation filed Tuesday seeking Justice Department documents relating to Francisco’s participation, while acting solicitor general, in litigation over Trump’s travel-ban executive order.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro