January 30, 2020 | The 48th Solicitor General of the United States, Noel Francisco, spoke to the Pepperdine Caruso Law community in a conversation with Dean Paul Caron as part of the William French Smith Endowed Lecture Series. As Solicitor General, Francisco represents the federal government in cases before the Supreme Court and is invited to give his assessment of when a question of federal law or constitutional rights merits the Court’s attention.
Joined by law students, faculty members, and special guests, Francisco spoke on a range of topics, including his family background, the expectations of his position, his preparation for Supreme Court arguments, and his advice for future lawyers. Francisco even answered an impromptu question, sent in during the conversation from former Solicitor General and Pepperdine Caruso Law Dean Ken Starr.
Francisco paid tribute to his father who was the first in his family to leave the Philippines and make a life for himself and his family in the United States. Francisco’s advice to first-generation law students is to “remember where you came from because that will sustain you as you go through life.” Francisco never considered law school because no one in his family was a lawyer. It was watching television shows about lawyers that inspired him to go to law school instead of pursue his childhood ambition of becoming a professional football player.
One of the challenges for Francisco and his office is inheriting ideological positions from prior administrations and deciding whether to depart from those positions or not. The Supreme Court hears about 150 cases per term, and the Solicitor General’s office participates in about 60 of those cases. When asked if he considers the Solicitor General to be the “Tenth Justice,” Francisco received a delighted response when he replied, “I have never heard a Supreme Court Justice say that. Some Justices refer to me as the 35th law clerk.”
Francisco said he rigorously prepares for Supreme Court arguments by reading the entire case record, reducing the case to what he would say in 30 minutes, and anticipating questions by answering his own questions out loud. His advice to future trial attorneys is to “answer the question” and “do not fight the hypothetical.” Francisco also advocated good writing skills and advised that “cases are won and lost based on written advocacy. I can count on one hand the cases that have been decided by oral argument.”
In response to a question about the lack of civic education and engagement among the population, Francisco responded that the biggest role for lawyers is to model civil discourse. He hopes that new lawyers will represent the type of civil conversation that is not seen in current media.
When asked about his time as a law clerk to Supreme Court Justice Antonin Scalia, Francisco reminisced that Scalia was not concerned about using fiery rhetoric or convincing the other Justices to join his dissenting opinions. When Scalia lost a case it didn’t matter if he lost by himself or with others because “he knew he was speaking across time, to the next generation, which is you.”