[Congressional Record Volume 163, Number 153 (Monday, September 25, 2017)]
[Senate]
[Page S5882]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   CONFIRMATION OF NOEL J. FRANCISCO

  Mr. VAN HOLLEN. Mr. President, I could not support Noel Francisco's 
confirmation to serve as the 47th Solicitor General of the United 
States. I do not believe Mr. Francisco can serve as a check on this 
administration and this President.
  Created in 1870 and colloquially referred to as the ``10th Supreme 
Court Justice,'' the Solicitor General represents the U.S. Government 
before the Supreme Court. The Solicitor General culls through thousands 
of cases a year and selects which cases the Department of Justice will 
appeal. Although the Solicitor General is the third highest ranked 
office in the Department of Justice, it is the Solicitor General alone 
who selects and approves every appeal. This heavy responsibility 
requires that the Solicitor General use sound legal judgment and resist 
pressure from and maintain independence from the President and Cabinet-
level members.
  History contains examples of Solicitors General who deferred to the 
President while constructing legal strategy and Presidents who were 
directly involved with shaping legal arguments. President Eisenhower 
personally wrote handwritten notes on his Solicitor General's briefs 
before they were submitted to the Supreme Court. President Eisenhower's 
notes softened the Solicitor General's tone regarding the expediency of 
desegregation after the seminal Supreme Court decision of Brown v. 
Board of Education.
  At this unique time in history, we cannot have a Solicitor General 
who will serve as a rubberstamp for this administration's policies. 
President Trump has shown a disregard and contempt for not only the 
rule of law but also for our constitutional separation of powers.
  Frederick William Lehmann, Solicitor General during the Taft 
administration said that ``the Government wins its point when justice 
is done in its courts.'' As acting-Solicitor General, Mr. Francisco 
defended the President's travel ban before the Ninth Circuit, in which 
he argued that Presidential authority regarding immigration is 
``largely immune from judicial control.''
  Mr. Francisco's lead in defending President Trump's Executive orders 
are deeply concerning. We need a Solicitor General that can say no to 
the President and resist positions advocated by the administration's 
hardliners when they fall outside of defensible legal boundaries. I do 
not believe Mr. Francisco can act as an independent check, and I could 
not support his confirmation.

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