‘Electing Judges’ Drives MAGA Agenda

A decision last week by a Trump-appointed federal judge in Texas that halted a nationwide ban on non-compete agreements shows that “pickering” is alive and well.

The order by Judge Ada Brown of Amarillo in the Northern District of Texas temporarily halted the Federal Trade Commission (FTC) from enforcing an edict it issued in the spring to go into effect next month. While not a final ruling, it does signal that it will soon be converted into a permanent ban, triggering a lengthy appeals process that could lead to the Supreme Court in several years.

The business groups’ lawsuit, filed a day after the FTC unveiled its proposal in April, was not unexpected. They are battling the Biden administration’s aggressive FTC chief, 35-year-old Columbia University law professor Lina Khan, over the agency’s various efforts to regulate and restrict business practices deemed contrary to consumer interests.

The issue has been high on her agenda, as it has been with President Biden, dating back to the 2020 presidential campaign. It seems to be in line with growing sentiment to restrict or ban the use of these restrictive devices that limit future employment or startup activities of employees competing with their current positions.

Minnesota became the fourth state last year to ban most noncompete agreements, joining an eclectic group of California, North Dakota and Oklahoma, and this year it went a step further by also introducing legislation to ban nonsolicitation agreements with independent contractors. The quartet is among about three dozen states that impose some restrictions on noncompete agreements, compared with about two dozen that allow them with few or no restrictions.

Suits for shopping

The ruling by a Texas judge appointed by Trump was the result of a practice known as “judge shopping,” a technique occasionally used by litigants but elevated to a recurring — and effective — strategic maneuver by the MAGA movement.

The FTC’s noncompete order is certainly not the only way that MAGA litigants bring cases to guest lawyers aimed at limiting policies or regulations with broad nationwide reach.

Last year, anti-abortion advocates chose the same federal court in Amarillo to file a lawsuit before Matthew Kaczmarek, a prominent right-wing colleague of Judge Brown’s who was appointed by Trump to halt the availability of the widely used miscarriage-inducing pill mifepristone, which was approved decades ago by the U.S. Food and Drug Administration. His ruling was slightly modified by a federal appeals court before being overturned this spring by the Supreme Court. The high court did not address the merits of the case but dismissed the case on the grounds that the doctors who brought the lawsuits lacked standing, which leaves the FDA-approved drugs available but subject to further legal challenges by the proper litigants, perhaps before the same Texas lawyer, hoping for the same result.

But it is not everything.

Earlier this summer in Mississippi, another Trump-appointed judge, Luis Guirola Jr., restricted a Biden administration order allowing federal funding for medical care based on gender identity and sexual orientation.

This case, like the other two, was “presented” to a jurisdiction known to be hostile to the Biden administration and will likely lead to exactly the outcome that occurred.

That makes it a clean victory — 3-to-3 — in the high-profile, recent MAGA “judge pick” success, on top of several other previous ones, such as repealing the Biden administration’s student loan forgiveness program and overturning a COVID travel mask mandate.

Liberal-leaning lawsuits

But “shopping” for friendly lawyers, to be sure, is not limited to MAGA lawsuits. Liberal litigants have sometimes filed lawsuits with nationwide appeal, especially consumer class actions, particularly in forums known to be sympathetic to those claims, as some intellectual property plaintiffs do in pursuing trademark and copyright lawsuits.

The MAGA movement has taken this practice to such a new level that it has attracted the attention of the Judicial Conference, a body of leading federal lawyers who set the rules for federal courts.

After the furor over the Texas judge’s mifepristone ruling, the Judicial Conference drafted a summer proposal that newly filed cases be randomly assigned to all judges in a broader judicial district, one of 94 in the country, rather than the specific court in the district where the case was filed. The protocol is intended to expand the pool of potential lawyers who could be assigned to a case.

But that’s probably a poor prophylactic, since in many Republican states, the vast majority of lawyers are ideologically aligned to support MAGA interests, or for that matter, to support liberal causes in some other states, like here in Minnesota.

Marshall H. Tanick

Judge shopping is less prevalent in Minnesota’s state court system, where litigants can automatically remove a judge from a case once for any reason, and there is a general requirement that challenges to state laws or government practices be filed in Ramsey County, the seat of government. These two protocols limit the use and effectiveness of judge shopping in cases involving state law issues.

In the absence of greater scrutiny of federal lawsuit filing procedures, given the deepening ideological divide in the judiciary, lawsuits against the national interest may be filed in jurisdictions sympathetic to the party bringing the case.

The lawsuit that curtailed the FTC’s noncompete order is not just a continuation of MAGA’s “judge-picking” approach, but its success bodes well for its increasing use in the future by both conservative litigants and those at the other end of the ideological spectrum.

It is yet another blemish on a justice system that already suffers from too many such crimes.

Marshall H. Tanick is an attorney specializing in constitutional and employment law with the law firm of Meyer Njus Tanick in the Twin Cities.