Unsurprising filing yesterday on behalf of Governor Hutchinson and Attorney General Leslie Rutledge opposing a motion by plaintiffs that Judge Lee Rudofsky get off the federal lawsuit challenging the redistricting of the Arkansas House.
Lawyers for plaintiffs and the ACLU, challenging the redistricting plan as racially discriminatory, had urged Rudofsky to recuse because he was a campaign contributor to both Hutchinson and Rutledge, who joined the secretary of state in approving the redistricting plan as members of the state Board of Apportionment. Rudofsky hosted a fund-raiser for Rutledge, for whom he worked as solicitor general. Both may be witnesses in the case.
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Hutchinson and Rutledge argue (in a filing by Rutledge) that case law provides no support for recusal based on pre-judicial campaign contributions by Rutledge’s former employee. Also, they argue, the suit is against the two in their official capacity, not personally.
… what is potentially at issue, like in a constitutional challenge to a state statute, is the legal adequacy of the state interests the State offers, and whether, as a factual matter, those interests could have been achieved via other means, such as the plan Plaintiffs propose. That the Court may have to resolve that kind of dispute no more undermines its impartiality than past contributions to a state legislator would prevent the Court from fairly adjudicating whether a bill he sponsored pursued compelling interests and was narrowly tailored to them. And even if credibility were at stake, the Court’s having once supported a witness’s political campaign is simply not enough to cause a reasonable observer to doubt whether the Court could fairly judge her credibility.
The defendants note a court ruling cited by plaintiffs that said — even where rules don’t require recusal — it might be wise in “politically sensitive” cases to avoid damage to the judiciary. No, say Hutchinson and Rutledge.
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“Granting requests for recusal over mere pre-judicial political support of named defendants would not burnish the judiciary’s reputation, but contribute to tarnishing it.”
There’s more in this situation than pre-judicial campaign contributions. There’s Rudofsky’s work for Rutledge, including on voting rights issues (in favor of Republican aims). Also, his ties to her probably explain (along with flaws among leading Arkansas native candidates for the seat he now holds as well as his long obedience to Federalist Society doctrine) that he got a Trump nomination to the federal bench. These traditionally go not to recent state arrivals but members of the local political network of the presidential party (or U.S. senators) in power.
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Legal arguments aside, I expect Rudofsky will stay on the case and that he will rule in favor of Rutledge and Hutchinson and the Republican Party of Arkansas (of which he’s been a dedicated member) on redistricting. It will look like a partisan judge delivering his party’s desired outcome, familiar in the era of Trump judges. And it will go largely unnoticed except by the victims of racial gerrymandering.
In the Trump era, his voters are unmoved by patently illegal conduct, much less by appearances of unethical actions and rank partisanship that ignore facts. One of those facts is that there is a national strategy by the Republican Party to retake congressional control and expand statehouse control by redistricting, such as at issue right now, and perhaps even restore the man who gave Rudofsky his job a return trip to the White House.
Appearances do matter. To some, anyway.
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