By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX - The U.S. Senate on Thursday confirmed Roopali Desai to be the newest judge on the 9th Circuit Court of Appeals despite grilling by Republicans in her role in fighting laws approved by Republican state lawmakers and defending Democratic Secretary of State Katie Hobbs.

Desai, an attorney in private practice in Phoenix, was nominated in June by President Biden to be the first South Asian on the federal court whose decisions become legal precedent for not just Arizona but eight other states and Guam. She also had the backing of the state’s two senators, both Democrats.

The 67-29 vote included the backing of 19 of the Senate's 50 Republicans.

But the path to the bench had to first traverse the Judiciary Committee where GOP senators pointed out the work she has done for progressive causes  and not all in the courtroom.

That included the defense of the 2017 petition drive to give the public the last word on a major expansion of the program to allow parents to get vouchers of state dollars to send their children to private and parochial schools. Desai beat back challenges to the referendum, paving the way for Arizona voters to kill the program in 2018.

She later joined the board of Save Our Schools Arizona, getting the notice of Sen. Ted Cruz, R-Texas, who has been a supporter of vouchers.

Right up to the time of her nomination, Desai was active in court. That includes filing motions on behalf of Hobbs to quash a bid by the Arizona Republican Party to kill all early voting in this year's election.

On one hand, Desai told Mohave County Superior Court Judge Lee Jantzen that the party and Kelli Ward as its chair have known for decades that Arizona allows anyone to vote early. Yet they waited until earlier this year to go to court.

That case also became an example of how Desai makes legal arguments but with a bit of a political spin.

"Their claims are part of a broader ongoing effort to sow doubt about our electoral process to justify infringing voting rights,'' she wrote, noting that early and mail-in ballots made up nearly 90% of the votes cast in the 2020 general election. "Even though plaintiffs' claims are legally baseless, they threaten our democracy.''

Of note, though, is that Alexander Kolodin, the attorney arguing against her in that case, submitted a letter in support of her nomination.

"Having faced the best litigator the other side has to offer, I can tell you with confidence - nobody else holds a candle to Ms. Desai,'' he wrote. "She has the uncanny ability to advocate for an outcome preferred by her clients by making originalist arguments that might have come from Justice Thomas's pen.''

Desai's rhetoric also showed up in some work she did on behalf of Biden, at least indirectly.

That was in a case brought by Ward who sought to void the results of the 2020 election that awarded the state's 11 electoral votes to the Democratic nominee. Desai, representing Hobbs, told the judge in that case that the real goal was "to undermine the integrity and credibility of election results.''

Desai also played a prime role in forcing the state Senate to turn over records related to the "audit'' of the 2020 election returns and at one point even asked that Senate President Karen Fann be held in contempt for failing to comply with the court order.

And she filed suit to block state lawmakers and Gov. Doug Ducey from barring schools from requiring students and employees to wear masks. Desai won that case after the Arizona Supreme Court concluded that the mask mandate, along with another provisions like prohibiting schools from requiring vaccination against COVID-19 and banning the teaching of what had been labeled "critical race theory'' had been improperly enacted.

Desai sued Brnovich after he threatened to take Hobbs to court over her decision to temporarily shut down an online system that allows election candidates to collect qualifying signatures for the ballot.

She also did legal work on behalf of the organization that successfully got voters to approve the use of marijuana for recreational purposes.

Desai had less luck protecting the voter-approved Proposition 208 which would have imposed an income tax surcharge on the earnings of the state's most wealthy to fund K-12 education. The Supreme Court ruled it could not take effect because it bumped up against a constitutional spending limit for education.

The justices also sided against her and her clients who tried to kill a $1.9 billion tax cut enacted by the Republican-controlled legislature.

And courts rejected a bid she made to allow initiative organizers to collect signatures online, something that lawmakers have reserved for themselves.

Desai's membership in organizations also got the attention of some federal lawmakers, including Just Communities Arizona, formerly the American Friends Service Committee, which advocates for alternatives to incarceration, as well as the American Civil Liberties Union and the National Cannabis Roundtable.