Lee Rudofsky finds himself in an unusual position for a judicial nominee: one of backing off of a legal position he previously took. However, his reversal is from a position ultimately supported by the Supreme Court, the constitutional basis of same-sex marriage.
Lee Philip Rudofsky was born in New York City in 1979. Buscher attended the Cornell University, getting a B.A. in 2001 and an M.P.A. in 2002. He then attended Harvard Law School, graduating in 2005. Rudofsky then clerked for Justice Robert Cordy on the Supreme Judicial Court of Massachusetts and then for Judge Andrew Kleinfeld on the U.S. Court of Appeals for the Ninth Circuit.
After his clerkships, Rudofsky joined the D.C. office of Kirkland & Ellis, where he would stay on and off until 2015. While at the firm, however, Rudofsky took hiatuses to work for Steve Poizner’s campaign for Governor of California in 2010 and for Mitt Romney’s campaign for President in 2012.
In 2015, the newly elected Republican Attorney General of Arkansas Leslie Rutledge hired Rudofsky to be Arkansas’ Solicitor General. Rudofsky held the post until 2018 when he joined Walmart as Senior Director of their Global Anti-Corruption Compliance team.
History of the Seat
Rudofsky has been nominated for a vacancy on the U.S. District Court for the Eastern District of Arkansas. This seat opened on March 31, 2018, when Judge Leon Holmes moved to senior status. In late 2017, after Holmes had announced his departure, Rudofsky expressed his interest in a judgeship with Sens. John Boozman and Tom Cotton. Rudofsky interviewed with the Senators, a selection committee set up by Cotton and the White House in October 2018. However, he wasn’t selected as a nominee until February 2019, after numerous other candidates had been rejected. Rudofsky was finally nominated in June 2019.
Rudofsky has spent his legal career divided between private practice and working as the Solicitor General of Arkansas, in which capacity Rudofsky served as the state’s top appellate attorney.
As Solicitor General, Rudofsky defended Arkansas’ Voter ID scheme against a challenge under the Arkansas Constitution. He also unsucessfully defended Arkansas’ policy of not placing same-sex parents on the birth certificates of children, a policy reversed by the U.S. Supreme Court. Rudofsky also argued against a Fayetteville ordinance protecting against discrimination, arguing that it was pre-empted by state law.
In private practice, Rudofsky notably joined a brief supporting a constitutional right to same-sex marriage. Surprisingly, despite the Supreme Court’s adoption of his position, Rudofsky walked away from his support of same-sex marriage in his confirmation hearing, stating that he regretted joining the brief.
Rudofsky has been active with the Republican Party since his college years, having been a member of Cornell Republicans. He then served as President of the Harvard Law Republicans as a law student. He has also worked on several Republican campaigns including those of Romney, Poizner, Cotton, and Rutledge.
Rudofsky is a talented attorney who will, similar to other Solicitor Generals appointed to the bench, face questions regarding the controversial laws he has defended, but will likely overcome that obstacle on the strength of the Republican majority. However, the more interesting issue is how Rudofsky’s volte face on the issue of same-sex marriage will affect his confirmation.
Rudofsky signed onto a brief supporting the right to same-sex marriage under the Fourteenth Amendment, a position he has now rejected as misguided. While lawyers can and do change positions on legal issues, Rudofsky’s justification for his reversal is that he has gained a better understanding of the Fourteenth Amendment since joining the brief. However, the position Rudofsky has taken is one embraced by the U.S. Supreme Court and enshrined in U.S. law. As such, his reversal creates two problems: first, it suggests that Rudofsky does not take much care in choosing the briefs he signs onto, casting doubt on his judgment; second, it suggests that his understanding of the Constitution is not informed by Supreme Court precedent, casting doubt on his neutrality.
To be more charitable to Rudofsky, it is possible that his expressed “regrets” are merely a way of ensuring that he does not become the next Michael Bogren, a lawyer rejected for taking a position that a senator disagreed with and of reconciling his prior positions with the more conservative ones he has embraced as Solicitor General. It is also possible that Rudofsky has genuinely become more conservative since he signed onto the brief. In any case, senators are sure to consider this issue closely in evaluating his nomination/
 Sen. Comm. on the Judiciary, 115th Cong., Lee Rudofsky: Questionnaire for Judicial Nominees 1.
 See id.
 Id. at 2.
 See id.
 Id. at 53.
 Max Brantley, The Latest on that Vacant Judgeship: Focus on a Newcomer to Arkansas, Arkansas Times, Mar. 18, 2019, https://arktimes.com/arkansas-blog/2019/03/18/the-latest-on-that-vacant-federal-judgeship-focus-on-a-newcomer-to-arkansas.
 Haas v. Martin, 60CV-18-752 (Pulaski County, Arkansas).
 Pavan et al. v. Smith, 582 U.S. ___ (2017).
 Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49.
 See Emma Roller, Why Only Two Republicans in Congress Admit to Supporting Gay Marriage, Slate, Feb. 26, 2013, https://slate.com/news-and-politics/2013/02/gay-marriage-legal-brief-two-republicans-in-congress-support-lgbt-rights.html.
 Frank E. Lockwood, Arkansas Up For Seat on U.S. Court Queried; Ex-Solicitor General Admits Regrets on Joining Briefs Supporting Gay Marriage, Northwest Arkansas Democrat Gazette, Aug. 1, 2019, https://www.nwaonline.com/news/2019/aug/01/arkansan-up-for-seat-on-u-s-court-queri/.
 See Rudofsky, supra n. 1 at 25-26.
 See id.