Trump court pick walks back support for same-sex marriage

WASHINGTON — President Donald Trump’s pick to serve on the U.S. District Court for the Eastern District of Arkansas disavowed his past advocacy of same-sex marriage, saying Wednesday his previous legal reasoning had been flawed.

During his confirmation hearing, Lee Philip Rudofsky distanced himself from a February 2013 friend of the court brief he had signed that challenged California’s Proposition 8, a ballot measure that had stripped gay couples there of the right to marry.

Rudofsky also withdrew his support for a March 2015 amicus brief challenging the constitutionality of same-sex marriage bans. (Amicus curiae is Latin for “friend of the court.”)

Backed by Rudofsky and scores of other Republicans leaders, both documents had urged the U.S. Supreme Court to side with gay couples who had been denied the right to marry.

Anti-gay statutes, the briefs argued, violate the Fourteenth Amendment to the U.S. Constitution.

Ratified shortly after the Civil War and designed to protect the rights of newly freed slaves, the amendment says states cannot “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Harvard Law School graduate, who moved to Arkansas in 2014, had signed the first brief while employed by the Kirkland & Ellis law firm in Washington, D.C.

He signed the second one while working as an assistant general counsel for Walmart.

Shortly after adding his name, Rudofsky joined the staff of Arkansas Atty. Gen. Leslie Rutledge as the state’s solicitor general.

When the same-sex marriage briefs were referenced Wednesday by Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., Rudofsky stressed that they hadn’t been official pronouncements.

Rudofsky had been identified, on both briefs, as “deputy general counsel, Romney for President, 2012.”

“Those were not when I was solicitor general. I did not sign those as a lawyer. Those were signed in my personal capacity,” he said.

Prior to joining Rutledge’s staff, Rudofsky’s understanding of the 1868 amendment had been limited, he said.

“When I joined those amicus briefs, I was not an expert in Fourteenth Amendment jurisprudence. Since then, as solicitor general, I’ve become much more familiar with that area of law and I have to say, if I had it to do over again, as a legal matter, I would not have signed those briefs.”

In Hollingsworth v. Perry (2013), the U.S. Supreme Court declined to overturn a lower court decision striking down Proposition 8. The state of California, which had the authority to appeal the ruling, had declined to do so, the high court noted.

Backers of the ballot measure lacked standing, on their own, to continue pursuing the litigation, the 5-4 ruling declared.

In Obergefell v. Hodges (2015), the Supreme Court agreed with the Fourteenth Amendment claims.

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sexcq may not be deprived of that right and that liberty,” the court said in a 5-4 ruling.

Striking down same-sex marriage bans in Arkansas and across the country, the majority stated: “Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Rudofksy’s abandonment of a position the Supreme Court had ultimately embraced raised questions for U.S. Sen. Mazie Hirono, D-Hawaii.

“The briefs argued for giving civil marriage rights to same sex couples,” she said. “Did you just tell Sen. Graham that you regret signing them and that you would not do so today?” she asked.

“Senator, let me firstNote: He said first twice. Once here. Once a couple of words later. …say first, obviously, that if I’m so lucky to be confirmed as a district court nominee I will of course, fully and faithfully follow the Supreme Court’s…” Rudofsky said before Hirono cut him off.

“Yes but what I’m ascertaining is whether you actually said this to Sen. Graham right now that you regret signing on to these two amicus briefs?” she asked.

“Obviously, I will fully and faithfully follow Obergefell as a district court nominee,” Rudofsky said. “But the answer to your question is, what I explained was, when I joined these amicus briefs. I was not an expert on Fourteenth Amendment jurisprudence. Since that time, I’ve become much more familiar with this area of the law as solicitor general, and if I had to do it over again, as a legal matter, I wouldn’t join the arguments in those briefs.”

Hirono also quizzed Rudofsky about his defense of Arkansas’ restrictive abortion statutes. A 2013 law banned most abortions after 12 weeks; federal courts struck down the law as unconstitutional.

In reply, Rudofsky said the ban had been passed and largely litigated before he became solicitor general.