Lee Rudofsky

On July 8, 2019, President Trump nominated Lee Rudofsky to the United States District Court for the Eastern District of Arkansas, for the seat previously held by Judge J. Leon Holmes. Rudofsky’s record paints a clear picture of a partisan warrior bent on curtailing critical rights and protections for everyday people. His nomination conforms to the Trump Administration’s stated goal of appointing judges who will assist in tearing down civil rights, health care access, environmental protections, workers’ rights, consumer protections, and the federal agencies that enforce them. Born in 1979, Rudofsky is among the many young lawyers Trump has nominated to serve on the federal bench. This is consistent with the Trump Administration’s strategy of naming ever-younger individuals to lifetime appointments on the federal bench to ensure a rightward tilt to our justice system for decades to come.

On July 8, 2019, President Trump nominated
Lee Rudofsky to the United States District Court for the Eastern District of
Arkansas, for the seat previously held by Judge J.
Leon Holmes. Rudofsky’s record paints a clear picture of a partisan
warrior bent on curtailing critical rights and protections for everyday people.
His nomination conforms to the Trump Administration’s stated goal of appointing
judges who will assist in tearing down civil rights, health care access,
environmental protections, workers’ rights, consumer protections, and the
federal agencies that enforce them. Born in 1979, Rudofsky is among the many
young lawyers Trump has nominated to serve on the federal bench. This is
consistent with the Trump Administration’s strategy of naming ever-younger
individuals to lifetime appointments on the federal bench to ensure a rightward
tilt to our justice system for decades to come.

As the Senate Judiciary Committee
reviews the troubling positions Rudofsky took as Solicitor General of Arkansas,
it’s important to note that Senate Republicans have consistently held nominees
accountable for their work as government lawyers. Republican opposition to
Michael Bogren’s work as an attorney representing the City of Lansing, Michigan
led to Bogren’s withdrawal.
Senator Ted Cruz opposed
Mark Bennett’s nomination to the Ninth Circuit based on Bennett’s work as
Hawaii’s attorney general, stating “[Bennett’s] record as Attorney General of
Hawaii, I believe, represents an advocacy position that is extreme and
inconsistent with fidelity to law.” And former-Judiciary Committee Chairman
Senator Chuck Grassley is on record opposing
Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C.
Circuit, saying “[s]ome of my colleagues have argued that we should not
consider this aspect of [Caitlin] Halligan’s record, because at the time she
was working as the Solicitor General of New York. But, no one forced Ms.
Halligan to approve and sign this brief.”

In the words
of Senator Cruz, the record Rudofsky established in the attorney general’s
office, in our view, “represents an advocacy position that is extreme.” His
record of aggressive advocacy for partisan and right-wing causes suggests he
will be unable to act as an independent, fair-minded jurist. Alliance for
Justice strongly opposes Rudofsky’s confirmation.

Biography

Rudofsky is currently
the Senior Director of the Global Anti-Corruption Compliance Team at Walmart.
He previously worked as an assistant general counsel for Corporate Affairs
& Government Relations at Walmart from 2014-2015. Rudofsky is also an
adjunct professor at the University of Arkansas School of Law. Rudofsky also
briefly worked as an adjunct professor, teaching Environmental Law and
Regulation, at the George Mason University Antonin Scalia Law School – a
university to which
“millions of dollars in donations from conservative-leaning donors like the
Charles Koch Foundation had come with strings attached.”

From 2015-2018, Rudofsky served as the
Solicitor General of Arkanssas, where he helped lead many of the state’s
conservative cases and policies – including leading
Arkansas in becoming the first state to successfully
strip Planned Parenthood of crucial Medicaid funding and assisting
other states in their attempts to do the same. Rudofsky’s role as Arkansas’
solicitor general included his involvement in virtually every major case; as he
noted in his Senate
Judiciary Questionnaire: “In addition to the matters I handled
directly, I also reviewed and revised nearly all briefs from our civil and
criminal departments before they were filed in the Arkansas Supreme Court or
any federal courts of appeal.” He added: “On novel or sensitive legal matters,
I helped those departments plan and supervise legal strategy for trial
litigation in both the state and federal courts.” He also “created and ran a
formal moot court program for the office” where he “complete[d] a deep dive
into the briefs and trial record of almost every case argued by the Office.”

Prior to becoming solicitor general,
Rudofsky worked in private practice for several years at Kirkland & Ellis,
LLP. He also worked for a number of Republican campaigns as counsel, including
as the deputy general counsel and director of Legal Election Day Operations for
Mitt Romney for President 2012 and deputy general counsel and acting general
counsel for the Steve Poizner for Governor of California campaign.

From 2006-2007, Rudofsky clerked for
Judge Andrew Kleinfeld on the Ninth Circuit and from 2005-2006 for Justice
Robert Cordy on the Supreme Judicial Court of Massachusetts. He received his
J.D. from Harvard Law School in 2005, his Master of Public Affairs from Cornell
in 2002, and his B.S. from Cornell in 2001.

Starting
early in college and law school, Rudofsky built his reputation opposing – and
demeaning – liberals and progressive ideas. For example, in a 2001 article,
Rudofsky described his Democratic student government opponents with the label
“liberal/socialist,” and claimed he worked his “way through the common web of
liberal deceit and trickery” to undercover an “[Al] Gore styled-plot to steal”
a student body election. He also labeled his student body election opponents as
“socialist foot soldiers.” This language echoed similar descriptions Rudofsky
used against prominent Democrats, including his claim
in 2000 that “[Hillary] Clinton has done nothing in her life to even consider
her worthy of a seat in the United States Senate.”

Rudofsky joined the ultraconservative
Federalist Society – an outside group to which Trump has delegated important
aspects of the judicial nomination process – in 2002 and currently serves as
the vice president of the Northwest Arkansas Lawyers’ Chapter. Rudofsky has
also been a member of the National Rifle Association (NRA).

He has supported many of Trump’s most
problematic judicial nominees, including Jeff
Mateer, Kyle
Duncan, Eric Murphy,
Patrick
Wyrick, Britt Grant,
Andrew
Brasher, Andrew Oldham,
and Brett
Talley. He worked
on an article praising the nomination of Neil
Gorsuch and wrote an opinion piece publicly supporting Brett
Kavanaugh’s nomination to the
Supreme Court.

In advocating
for Kavanaugh’s confirmation, Rudofsky – like Kavanaugh during his hearing –
showed his animosity toward Democrats alleging that, “in sum, what the
Democrats managed to do on the first day of the hearings was to show they don’t
really give a hoot about Judge Kavanaugh’s credentials or whether Judge
Kavanaugh is a mainstream judge.” He specifically called
out Senator Sheldon Whitehouse for “unleash[ing] a verbal
assault on 72 recent 5-4 decisions of the Supreme Court” where the conservative
majority of the Court ruled in favor of corporate interests, “in which
[Whitehouse] believed a Justice Kavanaugh would’ve sided with the majority.” He
also criticized Senator Dianne Feinstein for “fault[ing] Justice Kavanaugh for
saying nice things about the legal analysis in Justice Rehnquist’s dissent in Roe
v. Wade.”

Reproductive Rights

As Solicitor General of Arkansas,
Rudofsky fought to undermine and eviscerate constitutionally protected
reproductive rights. He demonstrated his personal opposition to reproductive
rights in a 2016 Federalist Society podcast
on abortion rights and Whole
Woman’s Health v. Hellerstedt:

[T]he framers of the Fourteenth
Amendment would find it interesting to say the least to suggest that a practice
that was banned at the time of the Fourteenth Amendment in many states actually
violated the Fourteenth Amendment. I don’t think that’s a legitimate and useful
argument. I think the framers of the Fourteenth Amendment would suggest that
banning abortions, prohibiting abortions, regulating abortions did not violate
the Fourteenth Amendment.

Rudofsky also minimized the right to
access crucial reproductive health services. In defense of so-called “rights of
conscience,” Rudofsky worked on an article
claiming that “[f]ar too often these days, the federal government or our sister
states force people to act in a way that violates a sincerely held religious
belief, even when it’s completely unnecessary.” As an example, he asked readers
to “[c]onsider the family-owned pharmacy punished for refusing to dispense Plan
B – an abortifacient – even though the owner believes doing so violates
his religious principles” [emphasis added].

Defunding Planned Parenthood

Perhaps the most infamous achievement of
Rudofsky’s career was his leadership in stripping millions of people of vital
health care and reproductive rights in Arkansas.

According
to the Arkansas attorney general’s office, Rudofsky “advised Attorney General
[Leslie] Rutledge on several key proceedings, including being the only state in
America to successfully terminate Medicaid program funding to Planned
Parenthood.” In 2015, Arkansas Governor Asa Hutchinson ordered
the Arkansas Department of Human Services [ADHS] to end its contract with
Planned Parenthood. This drastic move came after
the emergence of videos that falsely and negatively depicted Planned Parenthood
facilities and policies; these misleading
videos were later widely discredited. During the case, Rudofsky is reported
as misleadingly alleging that “one video suggests that tissue was taken from an
aborted fetus while its heart was still beating.”

When impacted patients sued Arkansas,
Rudofsky led Arkansas’ defense of its move to strip Planned Parenthood of
Medicaid funding in Doe
v. Gillespie. The lower court ruled
in favor of the patients and found “that because any suspension of Medicaid
payments would result in threatened irreparable harm to the Jane Does and
because the quality of [Planned Parenthood’s] care rendered to Arkansas
patients does not appear to be questioned by ADHS or other officials at this
time, the resulting harm to the Jane Does, who are [Planned Parenthood]’s
patients, is greater than the potential harm to ADHS’s pursuit of its stated
public policy objectives.” In reaching this determination, the court noted how
the “centers provide family planning services to men and women, including
contraception and contraceptive counseling, screening for breast and cervical
cancer, pregnancy testing and counseling, and early medication abortion” and
that “[i]n 2014, almost 40% of PPH’s Little Rock, Arkansas, patients, and 15%
of its Fayetteville, Arkansas, patients were insured through Medicaid.” The
court upheld an injunction to prevent the law from going into effect.

Despite these findings, Rudofsky led
Arkansas in appealing the ruling before the Eighth Circuit. The court held that
the patients did not have an individual right to bring the suit and therefore
could not demonstrate the likelihood of success on the merits needed to uphold
an injunction. This resulted in Arkansas being the first state to terminate
vital Medicaid funding from Planned Parenthood facilities – immeasurably hurting
low-income and vulnerable patients and families across Arkansas. Rudofsky did
not stop there; he also assisted other states in their attempts to block
individuals from accessing vital health care, including Louisiana
and Texas.

Abortion Bans

At a time when state after state is
enacting draconian abortion bans, it is especially concerning that Rudofsky
supported Arkansas’ efforts to implement a 12-week abortion ban.

In 2013, Arkansas passed
an abortion ban
that would restrict abortion access after 12 weeks of pregnancy if a so-called
fetal “heartbeat” can be detected – even though a fetus at 12 weeks does not
meet the viability
standard provided in Planned
Parenthood v. Casey. When the bill was challenged, a
federal district court stopped the bill from coming into effect. It held
“that the twelve-week abortion ban [] prohibits pre-viability abortions and
thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to
terminate a pregnancy before viability.”

Arkansas appealed to the Eighth
Circuit, which affirmed
the district court’s injunction against the abortion ban. Despite failing in
his request to have the Eighth Circuit rehear the case, Rudofsky persisted
and petitioned the Supreme Court to “revisit and overturn its unnecessary and
constitutionally infirm viability rule.” He argued the issue in the case was
“about the impropriety of a judicially-imposed rule – free from any serious
constitutional mooring – that sets in stone ‘viability’ as the point before
which the State’s profound interests must give way to a woman’s
desire to terminate her pregnancy” [emphasis added]. By doing so, Rudofsky
was essentially arguing for overturning abortion rights precedent in Roe v.
Wade and Planned Parenthood v. Casey.

Moreover, he proposed that the
availability of adoption services and “safe haven” laws made a person’s
constitutional right to have an abortion less firm: “While Arkansas law
admittedly prohibits some pre-viability abortions, a woman has a reasonable
amount of time to terminate her pregnancy in the first twelve weeks of
gestation, and a woman can abandon her child after the child is born without
consequence” [emphasis added]. Further, he emphasized the problematic view
that “[t]he State’s interest in fetal life does not begin at viability; rather,
the State’s interest begins at ‘the outset of pregnancy.’” In conclusion,
Rudofsky argued that it “is time for the Court to renounce the incoherent
viability rule, and this case is a perfect vehicle for the Court to do
so.” The Supreme Court denied
the petition to hear the case.

TRAP Laws

In recent years, anti-abortion and
anti-contraception advocates have developed and implemented what are known as
“targeted restrictions on abortion providers” (TRAP)
laws. In the wake of breaking news that Arkansas may potentially
become the seventh state with just one abortion clinic, Rudofsky’s work to
prevent people from receiving abortion care stands out. These TRAP laws come in
various forms, but all share the aim of imposing unnecessary, burdensome
requirements on abortion providers to the point of preventing a reproductive
health services facility from being able to perform crucial, constitutionally
affirmed services.

In 2016, the Supreme Court held in Whole
Woman’s Health v. Hellerstedt that because certain TRAP laws in
Texas put “a substantial obstacle in the path of women seeking a previability
abortion, each constitutes an undue burden on abortion access … and each
violates the Federal Constitution.” Rudofsky, on behalf of the state of
Arkansas, worked
on a brief
supporting Texas in its effort to impose these burdensome, unconstitutional
TRAP laws.

Later, in 2017, despite the Supreme
Court’s binding precedent in Whole Woman’s Health, Rudofsky defended
Arkansas’ own TRAP law involving medication abortion. In Planned
Parenthood of Arkansas & Eastern Oklahoma v. Jegley,
the Eighth Circuit vacated and remanded the lower district court’s holding,
which had prevented a TRAP law from going into effect that imposed restrictions
on abortion facilities that provided medication abortion to patients.

When Planned Parenthood petitioned for
the Supreme Court to take up the case, Rudofsky wrote Arkansas’ brief
in opposition. He argued erroneously
that medication abortions are dangerous procedures, thus concluding that the
Arkansas law requiring “medication abortion providers to have a contractual
relationship (to ensure follow-up treatment if needed) with a physician that
has admitting privileges” was not an undue burden. However, the “working
arrangement” Rudofsky argued for was in fact eerily similar to the provision
that the Supreme Court clearly struck down in Whole Woman’s Health.

LGBTQ Equality

Rudofsky has given several
speeches at events sponsored by Alliance Defending Freedom (ADF), an
organization that
“has supported the recriminalization of homosexuality in the U.S. and
criminalization abroad; has defended state-sanctioned sterilization of trans
people abroad; has linked homosexuality to pedophilia and claims that a
‘homosexual agenda’ will destroy Christianity and society.” The Southern
Poverty Law Center (SPLC) designates ADF as a “hate
group” and noted how “[s]ince the election of President Donald
Trump, the ADF has become one of the most influential groups informing the
administration’s attack on LGBT rights.”

Rudofsky defended Arkansas when two
same-sex couples sued
the state to require Arkansas to list the spouse of a birth mother, regardless
of gender, as the second parent of their child on their birth certificate
without having to go through the process of adoption or a court order. The
Supreme Court ultimately agreed
with the trial court that the mother’s spouse should be automatically presumed
as the second parent on a birth certificate. Rudofsky drafted
and heavily revised briefs, argued the case in the state supreme court, and
drafted guidance on how to proceed once the final decision came down. The
state’s amicus
brief at the Supreme Court argued that “marriage to a child’s
biological parent does not automatically confer a protected liberty interest in
a parent-child relationship,” that disregarding biological differences between
the sexes risks making the guarantee of equal protection superficial, and that
not listing the same-sex spouse of a mother “reflects typicality.”

Rudofsky also fought
a city ordinance banning
discrimination based on sexual orientation or gender identity, claiming the
ordinance was pre-empted by state law that prevents localities from enacting
such protections. Eventually, the state supreme court ruled
that the city could not enforce the anti-discrimination ordinance.

In fact, on multiple occasions Rudofsky
either authored or edited articles justifying LGBTQ discrimination. As
solicitor general, Rudofsky also signed
an amicus brief in Arlene’s
Flowers, Inc. v. Washington advocating that a florist has the
right to refuse to serve a same-sex couple. The brief included the suggestion
that rather than ensuring businesses serve customers equally, the state should
create a registry of business owners willing to serve same-sex couples. The
brief also minimized the harm to the couple, saying they “suffered at most only
a dignitary-type harm in hearing a message with which they disagreed,” and
claiming the couple benefited from the discrimination because of the offers
they later received for free floral arrangements.

It does bear noting that he previously
signed two briefs by conservatives supporting same-sex marriage in Hollingsworth
v. Perry and Obergefell
v. Hodges.

Environment

Like many other Trump nominees,
Rudofsky has a record of hostility toward the agencies that enforce vital
public health and safety protections. For example, he claimed
“it has become apparent that federal government overreach – and specifically
federal agency regulations that intrude into areas historically regulated only
by states – is a pressing concern to most if not all states.” He said, “the growing consensus is that the
amount of power wielded by agencies today and how that power is wielded raise
serious constitutional issues about separation of powers, checks and balances,
and federalism.”

His agenda to weaken public protections
for clean air and clean water is an agenda he will certainly bring with him to
the federal bench. Much of Rudofsky’s environmental record follows in the
footsteps of now-disgraced,
former-Environmental Protection Agency (EPA) Administrator Pruitt – a man whom
Rudofsky worked on a statement publicly supporting
as “the right person at the right time to lead the EPA.” In addition, Rudofsky supported
the nomination of Jeffrey Bossert Clark to head the Environment and Natural
Resources Division (ENRD) at the Department of Justice, claiming he was “the
perfect choice to head the ENRD.” Rudofsky’s endorsement
of Bossert “to serve as the Justice Department’s top environmental lawyer” came
despite Bossert’s record of being an outspoken denier of climate change, in
addition to having a well-documented history of opposing public health and
environmental protections.

Climate Change

Rudofsky led
the state of Arkansas, along with several other states, in challenging the
Clean Power Plan (CPP). As environmental advocates explained,
the CPP was projected to “cut the electric sector’s carbon pollution by 32
percent nationally” and in addition “[e]conomists believe[d] that in 2030, the
Clean Power Plan could save the country $20 billion in climate-related costs
and deliver $14 billion to $34 billion in health benefits.” This included
preventing over 90,000 asthma attacks in children.

Rudofsky called
the CPP “a blatant act of commandeering” and criticized its efforts to reduce
carbon dioxide emissions. The conservative majority on the Supreme Court stayed
the rule and the issue was made largely irrelevant when, in 2019, Trump’s EPA killed
the CPP and replaced
it with a much weaker plan.

Clean Air

In Michigan
v. EPA, states challenged the EPA’s authority pursuant to the
Clean Air Act to regulate power plants when “appropriate and necessary.” They
argued the Act was unreasonably interpreted when the EPA didn’t consider cost
in its regulation. As environmental advocates explained,
a rule within the Act was estimated to “eliminate the emissions of thousands of
tons of fine particulate matter emissions, along with power plants’ emissions
of mercury, lead, and other hazardous air pollutants.” In doing do, data showed
it would have prevented: “up to 11,000 premature deaths from respiratory and
cardiovascular illness; 3,100 emergency room visits for children with asthma;
more than 250,000 fewer cases of respiratory symptoms and asthma exacerbation
in children; and 4,700 non-fatal heart attacks.”

The Supreme Court, in a 5-4 decision, agreed
with the states, and remanded the case to the D.C. Circuit. After
the Supreme Court decided that the EPA must consider costs before imposing
regulations, the D.C. Circuit on remand
chose to keep in place prior EPA regulations imposed on power plants in order
to “allow the agency to expeditiously cure the defect identified” by the
Supreme Court. Accordingly,
the states, including Arkansas – represented by Rudofsky – sued again, arguing that a reviewing court may
not leave an unlawful rule in place. Rudofsky sought to have the Clean Air Act
regulations at issue – emissions standards over toxic air pollutants produced
by power plants – struck down. Arkansas’ petition to the Supreme Court was denied.

In addition, Rudofsky represented
Arkansas in opposing the National
Ambient Air Quality Standard for Ozone (NAAQS).

He also listed in his Senate Judiciary
Committee questionnaire among his “most significant legal activities” his
representation of the “Alliance of Automobile Manufactures, the National
Automobile Dealers Association and individual dealerships. . .  challenging certain states’ motor vehicle
greenhouse gas standards as preempted by the Clean Air Act and the Energy
policy Conservation Act.”

Chemicals And Toxins

Rudofsky supported
the Trump Administration’s delay in implementing the Chemical Disaster Rule. As
environmental advocates explained,
the rule was introduced after a deadly chemical fire at a plant in Texas. They
detailed how “Obama’s new rule laid out in more detail what specific
information the companies should share with first responders who would need to
know exactly the kind of special equipment required for putting out chemical
fires.” Additionally, “it required the most dangerous industrial sectors,
including chemical manufacturers and refineries, to do an assessment of safer
alternatives and technologies in order to reduce the risk of an explosion.”

Despite these safety benefits, Rudofsky
and his colleagues – intervening on behalf of disgraced
then-EPA Administrator Pruitt – argued
the required safety measures would put financial burdens on corporate
polluters. In 2018, the U.S. Court of Appeals for the District of Columbia ruled
against Rudofsky, holding that the Trump Administration’s “EPA’s action was
arbitrary and capricious” and the delay would be vacated.

Clean Water

As solicitor general, Rudofsky also worked
with several states to roll back environmental protections aimed at curtailing
pollution from mining into streams and waterways.

In 2016, the Obama Administration finalized
the “stream protection rule,” which was implemented to “better protect water
supplies, surface water and groundwater quality, streams, fish, wildlife, and
related environmental values from the adverse impacts of surface coal mining
operations.” In defense of big oil corporations’ interests, Rudofsky joined
other states to challenge
the rule in January 2017. The challenge later proved to be largely irrelevant
when the Trump Administration overturned the
rule the following month.

This was not the first time Rudofsky
supported coal mining profits at the expense of clean water and environmental
protections. In September 2009, Rudofsky wrote an article for the Federalist
Society titled
“Mountaintop Coal Mining: A Permitting Process in Flux,” where he provided
arguments against efforts to make coal mining more environmentally sound.

Additionally, during his time in
private practice, Rudofsky was a member of the legal team representing British
Petroleum (BP) following the Deepwater Horizon catastrophe.

Threats To Animals And Habitats

During his time as solicitor general,
Rudofsky’s office opposed
the Endangered
Species Act’s (“ESA”) critical habitat designation. As environmental
advocates explained, “[c]ritical habitat designations are
an essential tool in the Endangered Species Act (ESA) toolbox,” as “[t]hey are
the primary mechanism Congress created to accomplish the goal of the act.”

Immigration

During Rudofsky’s tenure as solicitor general,
the Attorney General of Arkansas signed on to briefs opposing protections for
immigrants, including U.S.
v. Texas, which involved the expansion of the Deferred Action for
Childhood Arrivals (DACA) program and the Deferred Action for Parental
Accountability (DAPA) program. After the Fifth Circuit ruled in favor of Texas,
Arkansas joined
Texas’s brief opposing Supreme Court review, arguing that “respondents seek to
protect their citizens from economic discrimination in favor of DAPA
recipients[.]”The brief
also warned that “DAPA will impose significant education, healthcare, and
law-enforcement costs on plaintiffs because it will cause additional aliens to
remain in the country and consume these costly services.” The Supreme Court
ultimately upheld
the nationwide injunction.

Rudofsky also signed an amicus
brief in County of Santa Clara v. Trump, supporting
Trump’s attacks on immigrants by specifically
preventing local governments from issuing measures to protect immigrant
communities.

Education

At a time when many Trump judicial
nominees refuse
to affirm the correctness of Brown v. Board of Education,
it is notable that Rudofsky fought against protecting the right to equal
educational opportunities.

As Arkansas solicitor general, Rudofsky
represented the Arkansas Department of Education in a suit brought by parents
and community members of Little Rock, alleging that the department implemented
a variety of policies that furthered racial discrimination in Little Rock
schools. The parents claimed that Arkansas provided
better funding and resources for schools with large white student populations, increased
the number of charter schools to primarily benefit white students in affluent
neighborhoods, dismissed
black school board members, and has
“a racially motivated policy, custom, or practice of disciplining black
students more harshly or differently than white students.” The district court held
that despite all of the facts presented, the plaintiffs did not show that the
state was “partly motivated by racial animus or were otherwise constitutionally
impermissible,” and the court granted the motion to dismiss.

One author, writing in the Atlantic,
characterized and provided context for the case by explaining Little Rock’s
long history of racial segregation in schools and housing:

Today, those who oppose integration are
still fighting it, but in less overt ways. They have moved to outlying areas to
get away from lower-income, black families and have prevented those families
from following them. They’ve built new schools and established charters in
these majority-white areas so that white children don’t have [to] attend
lower-performing majority-black schools. And they’ve made sure that the people
who are trying to push back against these actions don’t have power in the
district.

What’s stunning about today’s methods
of avoiding integration is that they are, by and large, legal, but they
nevertheless leave black students stuck in schools that are separate and
unequal.

In
a 2000 article
titled “Validating Vouchers: Privatization Is the Last, Best Hope for Public
Education Reform,” Rudofsky penned his support for George W. Bush’s platform
regarding school vouchers.

Voting Rights

Rudofsky represented
the state when an Arkansas resident challenged
the state’s law mandating that voters must present a valid ID, or otherwise
cast a provisional ballot (with strict and onerous provisions to then get the
provisional ballot to count). The law was upheld
by the Arkansas Supreme Court, with the dissent noting that “[r]equiring a
voter to show a photo identification card at a polling place is simply not part
of the voter registration process.” Rudofsky defended the law despite the fact
that it was passed to skirt the state supreme court’s previous
ruling which held that requiring a photo ID at the polls was an
unconstitutional barrier to the right to vote.

Rudofsky has a history of advancing
false and dangerous narratives surrounding voting rights. As deputy general
counsel for Mitt Romney’s 2012 presidential run, he wrote a letter
to Virginia’s attorney general and board of elections chairman seeking to
investigate and invalidate recent voter registrations. In an article discussing
concerns about nationwide injunctions, Rudofsky also cautioned
how those types of injunctions could impact cases regarding “redistricting
cases, voter ID cases, and discrimination cases.”

Racial Justice

Rudofsky has also voiced his opposition
to affirmative action. In responding to critiques leveled against him for being
“racist” and “foolish,” Rudofsky claimed his “arguments held that affirmative
action perpetuates and maintains a system of racial stereotyping: individuals
are lumped into categories arbitrarily based upon nothing but their race. This
serves to undermine the fight against racism which supporters of affirmative
action allege to so vehemently oppose.”

Sexual
Assault

Rudofsky signed an amicus
brief supporting the state of Arkansas in a Title IX case, in
which Arkansas claimed
the Constitution prevents the state from being sued for money damages under
Title IX. If that were true, students would no longer be able to sue their
school for money damages when the school mishandles their sexual assault
claims.

The case, Fryberger
v. University of Arkansas, involved a former student who said
the university mishandled her sexual assault case. The university found
Fryberger’s assailant guilty and said it would expel him; the assailant did not
contest his guilt, but argued the sanction would damage his athletic career.
The university then told Fryberger her assailant would not be expelled until
after graduation, and she withdrew from school. After Fryberger sued, the
school claimed sovereign immunity to avoid paying her damages. On behalf of the
state, the Arkansas attorney general’s office cited
concerns about “taxpayer dollars” (but not their students’ safety and
wellbeing) for their reasoning in the case. They argued that the potential
consequence of not deterring schools from violating Title IX is “grossly
overstated” because students could report to the police or complain to the U.S.
Department of Education. But as supporters of Fryberger noted, the Department
of Education “cannot award monetary damages” which “survivors sometimes need
for medical and mental health bills, as well as other costs.”

After a federal district court denied
their motion to dismiss, the university appealed
to the Eighth Circuit, which affirmed the district court’s denial to dismiss
the Title IX claims on sovereign immunity grounds.

Workers’ Rights

During Rudofsky’s time as solicitor
general, Arkansas sued
to stop the Obama Administration’s overtime rule, which would have made about four
million workers eligible for overtime pay. After a federal judge
issued a nationwide injunction preventing the rule from going into effect,
Rudofsky hailed
the decision as “welcome news for. . . employees.”

When an employee of a state college
sued the school for violating state overtime provisions, Rudofsky helped write
the brief for the state arguing that the state’s sovereign immunity barred the
complaint. The state supreme court agreed,
reversing
the lower court. In Rudofsky’s own
words, “[T]his decision sent shock waves through the state
judiciary, the state legislature, and the state bar.” This has led to confusion
and paved the way for future abuses by the state, without accountability – the
state supreme court has already ruled
a second time that legislators cannot create a right for residents to sue the
state.

Rudofsky also supported the state’s
efforts opposing the Obama Administration’s Persuader
Advice Exemption Rule, which Arkansas
“le[d] the fight against” by suing
the United States Department of Labor. The rule would
have forced businesses to reveal information to the government about
third-party labor relations consultants hired to help the company prevent
workers from unionizing. An op-ed
that Rudofsky worked on claimed that this rule to increase transparency for
workers was just the Department of Labor “putting the interests of labor unions
before the common good.”

Consumers’ Rights

Rudofsky worked on a 2016 article
titled “The CFPB’s unconstitutional power grab,” which examined the D.C.
Circuit’s decision in PHH
Corporation v. CFPB. The decision, written by then-judge
Brett Kavanaugh, held
in part that the statute
creating the CFPB was unconstitutional as it related to the President’s lack of
authority to fire the single-director except for “inefficiency, neglect of
duty, or malfeasance in office.”

However, in January 2018, the D.C.
Circuit reheard the claim en banc and held,
“[b]ecause we see no constitutional defect in Congress’s choice to bestow on
the CFPB Director protection against removal except for ‘inefficiency, neglect
of duty, or malfeasance in office,’ we sustain it.” The court recognized
Congress’s intent in protecting consumers following the 2008 financial crisis
and concluded that “[n]o relevant consideration gives us reason to doubt the
constitutionality of the independent CFPB’s single-member structure. Congress
made constitutionally permissible institutional design choices for the CFPB
with which courts should hesitate to interfere.”

The CFPB serves a vital role in
protecting consumers and Rudofsky’s labeling of the actions of this agency as an
“unconstitutional power grab” raises serious concerns.

Criminal Justice

Rudofsky joined
prison payphone providers in challenging a Federal Communications Commission
(FCC) rule
capping rates on phone calls from prisons, which can reach as high as $10 per
minute. This rule was overturned during
the Trump Administration and Trump’s new FCC Chair refused to defend the rule.

Rudofsky also filed two briefs arguing
that minors sentenced to life imprisonment without possibility of parole as
juveniles should continue to serve for life without eligibility for parole,
despite precedent
and state
law that suggested otherwise. In one of these cases, the state supreme court held that the
defendant was entitled to resentencing.

Death Penalty

During his tenure as solicitor general,
Rudofsky also defended the death penalty. In a video, Rudofsky said
he is “probably pro-death penalty, but . . . I very strongly believe it’s
constitutional.”

In 2017 alone, Rudofsky filed at least
12 briefs before the Supreme Court to oppose stays of execution for Arkansas
inmates facing the death penalty,including a case in which nine
incarcerated people on death row challenged the state’s decision to execute
eight people in eleven days. Four of the nine Supreme Court Justices would have
granted a stay of execution due to a variety of concerns,
including whether “the State’s compressed execution schedule constitutes cruel
and unusual punishment.” Furthermore, Rudofsky fought
to withhold information about the drug cocktail to be used for a prisoner’s
execution and defended
the state against claims
from a pharmaceutical company that did not want their drugs used in executions,
alleging that state officials improperly obtained their drugs to use in lethal
injections. That case was eventually dismissed
after the drugs were used in executions or expired.

Campaign Finance

Rudofsky claimed that
“I think $5 billion is a pretty reasonable amount of money to spend in a
conversation with the American public about who should be the leader of the
free world,” refuting the idea that when it comes to elections, the idea of
money as “free speech” is dangerous. He argued that “[t]hese are signs of a
functioning democratic republic, and are the physical embodiment of the First
Amendment.”

Conclusion

Throughout his career, Lee Rudofsky has shown his dedication to serving partisan interests at the expense of civil rights and public safety. Moreover, he has shown hostility to reproductive rights, LGBTQ equality, the environment, criminal justice, and education. He has opposed the existence of independent agencies and advocated for ideologically extreme positions. For these reasons, Alliance for Justice strongly opposes his confirmation to a lifetime seat on the federal bench.