Liberals Target First Circuit in Birthright Citizenship Suits (2)

Progressive litigants challenging President Donald Trump immigration policies in his first hours in office filed three separate suits within the jurisdiction of the Boston-based federal appeals court.

It’s an early hint that the US Court of Appeals for the First Circuit, where all five active judges are Democratic appointees, could prove to be a magnet for liberals seeking to thwart Trump priorities.

Even as other circuits, including the once notably liberal Ninth Circuit, shifted rightward thanks to Trump’s first term appointments, the First Circuit encompassing four New England states plus Puerto Rico remains potentially friendlier territory.

“That’s a pretty Democratic-controlled court of appeals. I think that’s part of the calculation,” said Harvard professor Maya Sen, who has written about ideology in the federal judiciary. “I don’t think it’s a coincidence.”

The choice of the First Circuit in the early challenges to Trump’s executive order aiming to end birthright citizenship reflects how Trump and, to a lesser extent Joe Biden, reshaped the federal appeals courts.

Court Composition

During Trump’s first term, the San Francisco-based Ninth Circuit and New York-based Second Circuit were popular venues for national immigration challenges, including to the family separation policy at the border and attempt to ask about citizenship status on the decennial census.

However, those two circuits are now more evenly divided, due in part to Trump’s ability to flip seats once held by Democratic appointees left open by the Republican-controlled Senate.

The Ninth Circuit has 13 Republican appointees and 16 Democratic appointees on its active bench, and the Second Circuit has seven Democratic appointees and six Republican appointees.

The First Circuit had two Republican appointees at the start of Trump’s first term, but now has all Democratic appointees on its active bench: four judges appointed by Joe Biden and one Obama appointee. The court also has six senior judges still hearing cases, two of whom were appointed by Republican presidents.

The court was set to remain a Democratic stronghold, but a last-minute Senate deal at the end of 2024 left one First Circuit seat open for Trump to fill.

All five federal trial courts covered by the First Circuit have a majority of active judges appointed by Democratic presidents.

The Massachusetts district court—the circuit’s largest bench where the attorney generals filed litigation against the birthright citizenship order—has 11 active judges appointed by Democratic presidents, compared to two judges appointed by Republican presidents.

‘No Forum Shopping’

The challenges were brought in Massachusetts by Boston-based Lawyers for Civil Rights, on behalf of expectant mothers and immigrant organizations, and Democratic attorneys general, on behalf of immigrant communities, and in New Hampshire by the American Civil Liberties Union.

Massachusetts Attorney General Andrea Campbell (D) told reporters Tuesday that the coalition of attorneys general chose to file in her state because of its protections for immigrants and values. She also said that its judiciary that is “quite intelligent,” prioritizes the rule of law, and issues thoughtful decisions.

Washington Attorney General Nick Brown (D) also filed a multi-state challenge to Trump’s order in the US District Court for the Western District of Washington, whose active bench has all Biden appointees. That case would be heard by the Ninth Circuit if appealed. Another case was filed in the US District Court for the District of Maryland, part of the Fourth Circuit, on behalf of immigrants.

Jacob Love, senior attorney for Lawyers for Civil Rights, which brought a challenge on behalf of expectant mothers and immigrant organizations, said “there was no forum shopping here.”

Love said the organization files all of its federal cases in the District of Massachusetts, so choosing an appropriate venue wasn’t a consideration.

“We don’t think it really matters all that much which circuit you’re in because the history and the legal claims are so strong,” Love said.

Nancy Gertner, a senior lecturer at Harvard Law School and retired federal trial judge in Massachusetts, also pushed back against what she described as a false equivalence between Trump-appointed judges and those appointed by earlier presidents.

The judges within the First Circuit “are fair people to appear in front of” who will respect precedents, “which frankly in these situations favors the plaintiffs,” Gertner said.

Still litigants can’t count on being assigned a Democratic appointee by filing suits in district courts within the First Circuit. That’s the case in Texas, which has federal courts with single-judge divisions that have allowed conservative litigants to select their preferred judge.

The ACLU’s suit in New Hampshire was assigned to Joseph N. Laplante, a George W. Bush appointee, and the only judge appointed by a Republican president on that three-judge bench.

LCR’s suit and the attorney general-led suit in Massachusetts will be heard by Judge Leo T. Sorokin, an Obama appointee.

New England courts saw progressive immigration litigation in Trump’s first term as well. A federal court in Boston approved a settlement Jan. 16 in a case brought by the ACLU of Massachusetts on behalf of immigrants challenging the Trump administration’s separation of married couples pursuing lawful citizenship.