GOP-majority court chosen to consider Biden vaccine mandate

Challenges to President Joe Biden’s COVID-19 vaccine mandate for private employers will be consolidated in the U.S. 6th Circuit Court of Appeals, a panel dominated by judges appointed by Republicans.

The Cincinnati-based court was selected Tuesday in a random drawing using ping-pong balls, a process employed when challenges to certain federal agency actions are filed in multiple courts.

The selection could be good news for those challenging the administration’s vaccine requirement, which includes officials in 27 Republican-led states, employers and several conservative and business organizations. They argue the U.S. Occupational Safety and Health Administration does not have the authority to impose the mandate.

The challenges, along with some from unions that said the vaccine mandate didn’t go far enough, were made this month in 12 circuit courts. Under an arcane system, it was up to the clerk of the Judicial Panel on Multidistrict Litigation to select a ping-pong ball from a bin to choose where the cases would be heard.

It was a favorable outcome for Republicans. Eleven of the 16 full-time judges in the 6th Circuit were appointed by Republican presidents. Accounting for one of the Republicanappointed judges, Helene White, who often sides with judges appointed by Democrats and adding senior judges who are semi-retired but still hear cases, the split is 19-9 in favor of Republicans. Six of the fulltime judges were appointed by former President Donald Trump.

Another court where a majority of judges were nominated by Republicans, the New Orleans-based 5th Circuit Court of Appeals, issued a ruling that put the mandate on hold.

It’s not clear whether the court that will hear the case will act as the 5th Circuit did and side quickly with the Republican challengers. But legal experts have become increasingly concerned in recent years about the politicization of both federal and state courts, raising questions about whether justice is fairly administered or dispensed through a partisan lens.

Allison Orr Larsen, a professor at William & Mary Law School, coauthored a study published this year that found growing partisanship in federal judicial decisions. For decades, the study found that rulings on cases in which all judges in a circuit weighed in generally were not decided along party lines based on the presidents who appointed the judges.

“We did see a concerning spike starting in 2018 that led us to wring our hands,” Larsen said in an interview.

The increasing partisanship in a branch of government that is supposed to be blind to partisan politics was seen in judges appointed by presidents of both parties, but Larsen said it’s not clear why that was or whether it will last.

Some of the federal courts moved to the right when Donald Trump was president and Republicans controlled the U.S. Senate, which confirms judicial nominees. Trump appointed 54 judges to the circuit courts, which are one step below the U.S. Supreme Court, including filling one seat twice.

That represents nearly 30 percdent of the seats on the circuit courts, where cases are most often considered by threejudge panels.

Trump’s appointees flipped the 11th Circuit in the South to Republican control and expanded the GOP-appointed majorities in the 5th, 6th and 8th Circuits in the Midwest and South. Biden’s three appointees switched the New York-based 2nd Circuit to Democratic control.

Republican state attorneys general and conservative groups mostly filed their challenges in circuit courts dominated by conservative judges, while the unions went to circuits with more judges nominated by Democratic presidents.

In all, 34 objections have been filed in all 11 regional circuits, plus the one for the District of Columbia. That’s where the ping-pong balls came into play.

Under federal law, cases challenging federal agency actions get consolidated upon the agency’s request if they are filed in multiple circuit courts.

Each circuit where a challenge is filed within the first 10 days of the agency taking action has an equal chance of being selected.

It was up to the judicial panel’s clerk, John W. Nichols, to select a ping-pong ball from a bin, according to a Tuesday court filing by the panel. The office denied a request by The Associated Press to allow media access to the drawing.