As the Trump administration faces substantial pushback in the courts, including an unprecedented wave of nationwide injunctions halting its policies, some are claiming that his opponents are tilting the scales of justice by selectively bringing their lawsuits before sympathetic courts in a practice called “forum shopping.” They note that three-quarters of the lower court justices who have blocked Trump policies were appointed by Democrats.
Gaming the federal justice system, however, is harder than it sounds because plaintiffs bring cases before courts rather than judges. Most federal courts have a mix of judges appointed by Democrats and Republicans. The plaintiff’s goal in forum shopping is to launch their suit in a district where they are more likely to draw a sympathetic justice – ideally, this district would also include an appellate court stacked with like-minded judges.
To see whether Trump’s adversaries are engaging in forum shopping, RealClearInvestigations analyzed 350 cases brought against the administration. We found that plaintiffs have brought 80% of those cases before just 11 of the nation’s 91 district courts. While Democrat presidents have appointed roughly 60% of all active district court judges, each of the 11 district courts where the anti-Trump challenges have been clustered boasts an even higher percentage of Democrat appointees. In several of these venues, the administration’s challengers are almost guaranteed that a judge picked by Joe Biden, Barack Obama, or Bill Clinton will preside over their case.
The analysis of these 350 cases, which covers all those identified in popular litigation trackers and RCI’s independent research as of this week, lends credence to claims that anti-Trump litigants may be strategically filing suit in courts where they are most likely to receive a favorable ruling – a practice that has been both pursued and decried by Democrats and Republicans.
RCI also analyzed three dozen cases in which judges imposed the most extreme restraint on the Trump administration by entering a nationwide or universal injunction – prohibiting the administration from enforcing its policy not only against the party bringing the case, but anyone, everywhere. The analysis shows that these injunctions have disproportionately emerged from Democrat-leaning courts where plaintiffs have brought the lion’s share of suits, and that Democrat-appointed judges are overwhelmingly responsible for ordering them.
This is consistent with other analyses indicating that Democrat-appointed judges have handed down the bulk of all adverse rulings against the Trump administration.
Hellbound and Down 