In June, President Joe Biden nominated Phoenix-based attorney Roopali Desai to the U.S. Court of Appeals for the Ninth Circuit.
The announcement was met with sparse local fanfare and a supportive statement from Arizona’s two Democratic senators, for one of whom Desai has been both a campaign donor and an attorney dating back at least a decade.
It should have received more attention, and a lot more scrutiny.
Because last Wednesday, when Desai appeared before the Senate Judiciary Committee and painted herself as an attorney who has represented “both sides” and who would, as a judge, “apply the rule of law objectively,” Arizonans raised our eyebrows. This self-portrait is not one that we are familiar with.
In reality, Desai has made a name for herself in Democratic circles as a partisan bulldog-for-hire akin to Marc Elias, and her clients now “have . . . the ear of the White House,” according to one of her colleagues.
The boutique law firm where she works as partner has counted Senator Bernie Sanders’s 2016 presidential campaign among its political clients, with the nominee herself representing a host of left-wing entities ranging from the Democratic Party to the Green Party, with many more to boot.
It would be unfair to tie a public defender to an unseemly criminal he’s asked to defend or an assistant U.S. attorney to the unpopular case she’s asked to prosecute. That is not the case with this nominee. To the contrary, there is no daylight between Desai, her clients, and the liberal public policies they push.
Her work in the field of education tells part of that story.
In 2017, despite a fierce opposition campaign by the Arizona Education Association, Governor Doug Ducey expanded eligibility for the state’s Empowerment Scholarship Account program. Barely four weeks later, Desai signed on to represent a newly formed group called Save Our Schools Arizona with one express goal: to stop the school-choice expansion. Soon after, she joined its board of directors, where she remains today.
The following election cycle, Desai was named attorney for a multimillion-dollar ballot initiative campaign known as Invest in Ed. The initiative, backed by the teachers’ union, aimed to hike Arizona’s income tax so dramatically that the state would have had the tenth-highest tax rate in the country.
Her conduct would have been questionable for an activist, let alone a measured litigator.
During one deposition, Desai attempted to force a local businessman involved in the anti-tax effort to publicly disclose his and his wife’s personal income level. Later, when a ruling on another matter didn’t go her way, she called the judge “gratuitous and insulting” and said that his order “could be part of a press release written by the Chamber itself.” She then filed a baseless complaint against the governor for urging a “no” vote.
Less than one year later, the nominee filed yet another lawsuit in an attempt to nullify bills approved by the state legislature banning school mask mandates and the instruction of critical race theory, among other priorities. Referring to the mask provision, Desai told the court that, if things did not go her way, children “will be hospitalized and they will die. . . . That is not hyperbole.”
As the case ended, the teachers’ union sent out a press release expressing its “special appreciation” for her by name.
This pattern can be found in other areas of Desai’s activism.
She represented a ballot initiative to legalize recreational marijuana and then joined the National Cannabis Roundtable’s advisory board. She filed a lawsuit to challenge Arizona’s ban on ballot harvesting; then identified elections officials for the transition team of the incoming Democratic secretary of state, Katie Hobbs, who voted against the ban in the state legislature; and then submitted an amicus brief when the ban reached the U.S. Supreme Court.
Such has been Desai’s legal career: leveraging the court system to alter public policy — and then leaning in further.
There is no doubt that she has been successful at the job she chose in courtroom activism. But the job she chose — and the inability thereafter to be a neutral and impartial arbiter of justice that came with it — is precisely what disqualifies her from a lifetime judgeship. Put simply, it is difficult to imagine a single scenario in which it would be appropriate for Desai to rule on issues facing our state.
The Ninth Circuit has enough problems. It does not need a partisan activist filling its ranks.
To protect the integrity of our appeals court, members of the Judiciary Committee would be wise to reject Desai’s nomination out of hand and work with President Biden in the next session of Congress on a nominee better suited for this important position.