I’ve written before about President Trump’s superb pick for the Eighth Circuit, Lee Rudofsky. The Eighth Circuit is on the cusp of true greatness and Rudofsky is the pick to complete that transformation.
A graduate of Cornell and the Harvard Law School, Rudofsky is a Federalist Society stalwart. He was an officer of the Harvard chapter as a law student and has since served as an officer in a Federalist Society practice group and in the Northwest Arkansas state chapter. His career is very impressive: research assistant to Professor Mary Ann Glendon, clerk for Judge Kleinfeld, Kirkland & Ellis (where we were on the same Deepwater Horizon trial team), Walmart, solicitor general of Arkansas. He also has the much-coveted political experience that the White House and conservative movement increasingly prize having been deputy general counsel to the 2012 Romney campaign and a volunteer lawyer for Senator Tom Cotton’s first Senate campaign.
His support is strong and wide, from the president of the Alliance Defending Freedom to the Wall Street Journal editorial board. In Arkansas he has support from the likes of the attorney general, the lieutenant governor, Representative French Hill, and the Arkansas Family Council.
This comes as no surprise because his time on the bench has been exceptional for the reasons I have explained before.
A headwind Rudofsky could face is the fact that — back when we were at Kirkland together a decade ago — he signed briefs in favor of gay marriage at the Supreme Court, led by Ken Mehlman and organized by the highly regarded Republican crisis lawyer, Reg Brown. As he laid out in his district-court hearing, though, Rudofsky has thoroughly repudiated those views. He explained inresponse to written questions from the Judiciary Committee, “When I joined these amicus briefs, I was not an expert in Fourteenth Amendment jurisprudence.” Now that he better understands the 14th Amendment, in other words, he has a different view on the issue.
Some may find that unsatisfactory, but it’s actually true. I know first-hand. When the first of those briefs went live, Rudofsky and I were having dinner while working late on preparing an expert witness in the Deepwater Horizon trial. He told me about the brief and I — gingerly, as a first-year associate — probed whether he fully appreciated the constitutional gravity of his position. After all, these cases stemmed from Justice Kennedy’s “sweet mystery of life” jurisprudence that also justified the post-Casey right to abortion. He genuinely had not considered that.
Now, I’m not taking any credit for his change of views — after all, he signed the Obergefell brief later, so I can’t have been that persuasive. But my experience tracks what he told the Judiciary Committee. Rudofsky was, indeed, not well versed in the 14th Amendment when he signed the first Mehlman brief, a fact that didn’t stop him from teaching me a lot about expert witnesses, orders of proof, and the Oil Pollution Act.
That changed when he became solicitor general of Arkansas. There he was constantly in court defending Arkansas on “social issues” litigation, including an ultimately doomed effort to keep same-sex spouses off Arkansas birth certificates. He even took a leave of absence to imbed himself in the team preparing for the Masterpiece Cakeshop argument. A change that big sticks.
In sum, Rudofsky is a great pick. This isn’t to say there weren’t other superb options available. Justice Nicholas Bronni, for example, of the Arkansas Supreme Court has a rock-solid record and similarly fits the credentialling bill of a Trump circuit judges. Another real contender could have been the current solicitor general, Autumn Patterson — an Andy Oldham clerk who previously worked at Jones Day. Other names were rumored who, unfortunately, have problematic judicial records on exactly the kinds of legal questions likely to come before the Eighth Circuit as President Trump continues to transform it.
But that transformation will be a policy capstone of this Congress and Rudofsky is a key component of it. Republican Senators should support it with gusto.