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U.S. Senate confirms Arizona attorney to 9th Circuit bench

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The U.S. Senate confirmed Roopali Desai on Thursday to be the newest judge on the 9th Circuit Court of Appeals, despite grilling by Republicans over her role fighting laws approved by Arizona’s GOP legislative majority.

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, which makes decisions of legal precedence for Arizona, eight other states and Guam. She also had the backing of the state’s two senators, both Democrats.

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

But Desai’s path to the bench had to first traverse the Judiciary Committee, where GOP senators pointed out the work, in the courtroom and otherwise, she has done for progressive causes.

That included defense of a 2017 petition drive to give Arizona voters the last word on the Legislature’s major expansion of a voucher program for parents to use taxpayer 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 expansion in 2018.

She later joined the board of Save Our Schools Arizona, a group that opposes voucher expansion, getting the notice of Sen. Ted Cruz, R-Texas, a supporter of vouchers.

Desai’s court actions before her nomination also included filing motions on behalf of Democratic Secretary of State Katie Hobbs to quash an Arizona Republican Party bid to kill all early voting in this year’s election.

She argued that the party and its chair, Kelli Ward, 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 political spin.

The GOP claims, she wrote in court filings, “are part of a broader ongoing effort to sow doubt about our electoral process to justify infringing voting rights.” Noting that early and mail-in ballots made up nearly 90% of the votes cast in the 2020 general election, she added, “Even though plaintiffs’ claims are legally baseless, they threaten our democracy.’’

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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 litigators 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 (Clarence) Thomas’s pen.’’

Desai also did some work on behalf of Biden, at least indirectly, getting a judge to throw out Ward’s 2020 lawsuit to void the results of the 2020 election that awarded the state’s 11 electoral votes to the Democratic presidential nominee.

Desai also played a prime role in forcing the Arizona Senate to turn over records related to the “audit’’ of the 2020 election returns and at one point asked that Senate President Karen Fann, R-Prescott, be held in contempt for failing to comply with the court order.

And she filed suit to block state lawmakers and Republican Gov. Doug Ducey from barring schools from requiring students and employees to wear masks. Desai won that case when the Arizona Supreme Court ruled the mandate against requiring masks, along with other provisions including prohibiting schools from requiring vaccinations against COVID-19 and banning the teaching of “critical race theory,’’ had been improperly enacted by the Legislature.

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

She also did legal work on behalf of the organization that successfully got Arizona 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 wealthiest residents 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 when they 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.

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