dissenting:
What’s a court of appeals up to when it decides that it is better equipped to determine a defendant’s delinquency and to assess the appropriate penalty than the judge who heard the testimony and who has even experienced the defendant’s misconduct in her court? A federal court of appeals has a definite duty when it reviews an award of punitives. In a federal case, it must decide whether the damages are so excessive and so unexpected that they offend the principle of fairness enshrined in the Due Process Clause of the Fifth Amendment. See BMW of North America v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The legal question is to be decided de novo. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 435-436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).
In reaching this determination of constitutional law the court is to be guided by the degree of reprehensibility of the offense; the ratio of the punitives to the compensatory damages awarded; and the civil or criminal penalties that could be awarded for comparable misconduct. Gore, 517 U.S. at 574-585, 116 S.Ct. 1589. Unavoidably a reviewing court must exercise its own judgment in applying these guideposts to the facts established in the case. The court must exercise further judgment in determining whether its legal conclusion, after applying these legal guides, is that the constitution has been violated by the award. Undeniably, in the absence of a mechanical rule, the subjective views of the judges affect the decision. See Karlan, “ ‘Pricking the Lines’: The Due Process Clause, Punitive Damages and Criminal Punishment.” 88 Minn.L.Rev. 880, 883 (2004). But this judgment must be based on facts.
She who heard the case is in the best position to determine the facts. In the exercise of this function, she is analogous to a sentencing judge in a criminal case: she has heard all the witnesses and formed a judgment of the defendant’s demeanor and credibility. Cooper Industries, 532 U.S. at 440, 121 S.Ct. 1678. What the reviewing court is not free to do is to make up facts or suppress facts established at trial. The legal question before the court, do the damages awarded offend due process of law, is not to be confused with the question: would I have awarded these damages if I were the district judge. Our court, I suggest, has answered the latter, irrelevant query.
No need here to set out at length the facts established at trial and stated in our opinion upholding Irvin’s liability. Southern Union v. Irvin, 415 F.3d 1001 (9th Cir.2005). I summarize those facts and what could rationally be inferred from them: Irvin, the chairman of the Arizona Corporation Commission, worked determinedly for a period of four months to promote the merger of an Arizona utility *795company with another utility and to defeat a merger proposed by Southern Union over $100 million more beneficial to the Arizona company. In court, Irvin testified that the motive of his machinations was the public good and that his calculated course to achieve his end was within the scope of his official duties. The jury did not believe his tale. To the contrary, the jury awarded punitives that reflected outrage at Irvin’s outrageous conduct. As his motive was not the public welfare, what prompted his outrageous behavior? Ruling on the award of punitives, the district court found as a fact that one motive consisted in Irvin’s “personal interests.” Southern Union Co. v. Southwest Gas Corp., 281 F.Supp.2d 1090, 1096 (2003).
Because Southern Union challenged its rival in court before the Irvin-backed transaction went through, no bribe was paid. But consider what a rational jury could have inferred from the fact that a young protégé of Irvin with little else to recommend him except this connection was to be paid a super-large fee for his help in arranging the deal. One does not need to look further to identify Irvin’s “personal interests.”
The district court also found:
Irvin’s purposeful persistence in this effort was matched by his efforts at concealment. As far as possible, his activities to block the merger were kept from his fellow commissioners. Southern Union Co., 281 F.Supp.2d at 1094. Afterwards he covered up his wrongdoing to ensure the outcome of the scheme. Id. When Southern Union challenged him and began litigation, his effort at concealment continued. He persevered in hiding his wrongful acts throughout the trial and in particular while testifying before the jury. Egregiously, he arranged the manufacture of evidence, purported notes of his wife’s telephone conversation, which he persuaded his counsel to present as genuine to the court. Id. at 1096. Such intentional fabrication of evidence confirmed his consciousness of guilt and added to the reprehensibility of his conduct.
It is not apparent to me how this court can overlook, neglect, or minimize these findings of the trial judge. It is equally not apparent to me how this court can treat the dereliction of duty by a high public official as though it were a run-of-the-mill tort. I take judicial notice of the existence and conclusion of a report to the Arizona legislature. Fed.R.Evid. 201(b); Transmission Agency of Northern California v. Sierra Pacific Power Co., 295 F.3d 918, 924 (9th Cir.2002). Irvin was a prominent Republican, holding high elective office in Arizona. The Republican-controlled Arizona House of Representatives conducted an investigation of his conduct as commissioner of corporations and recommended his impeachment for “high crimes and misdemeanor under the Arizona constitution.” In the Matter of the Arizona House of Representatives Investigation of Certain Allegations Against State Corporation Commissioner James M. Irvin, Vol. I: Southern Union v. Irvin, AZ H.R. Rep., 46th Leg., 191 (2003). Irvin resigned a week after the report became known. Central to the report was Irvin’s conduct affecting the Southern Union merger.
I do not cite the report as further evidence of the conduct already established in court, but as a measure of the reprehensibility of Irvin’s conduct. Punitives cannot be used to punish a defendant for harming persons not before the court. Philip Morris, USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 1063, 166 L.Ed.2d 940 (2007). At the same time, “Evidence of actual harm to nonparties can help show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly *796reprehensible.” Id. As we have already-determined, Irvin’s “exploitation of high public office” and the noneconomic damage done by him in fabricating evidence in his defense in court were proper factors to be considered in the punitives award. Southern Union v. Irvin, 415 F.3d 1001, 1011 (2005). Due process has not been denied this man faithless in public office and unscrupulous in his own defense.
I dissent.