Luck of the draw
The U.S. 6th Circuit Court of Appeals in Cincinnati will hear the collection of lawsuits regarding the Biden administration's requirement that companies with 100 workers or more ensure their workforce is vaccinated or tested for COVID-19 weekly, beginning in January. At least 34 challenges to the Occupational Safety and Health Administration (OSHA) rule plus lawsuits arguing it doesn't go far enough have been filed in all 12 appellate courts, and a lottery drawing on Tuesday gave all those cases to the 6th circuit court.
Under the arcane system, the clerk of the Judicial Panel on Multidistrict Litigation, John W. Nichols, selected a ping-pong ball from a bin, and he grabbed the Cincinnati court's ball. A conservative three-judge panel of the New Orleans–based 5th Circuit Court of Appeals has halted the OSHA rule, and the panel of judges selected from the 6th Circuit can uphold that stay, modify it, or throw it out.
The lotto drawing "was a favorable outcome for Republicans," The Associated Press notes. "Eleven of the 16 full-time judges in the 6th Circuit were appointed by Republican presidents. Accounting for one of the Republican-appointed 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 full-time judges were appointed by former President Donald Trump."
Until recently, the party affiliation of the president who appointed the appellate judges had little bearing on how those courts ruled, but "we did see a concerning spike starting in 2018 that led us to wring our hands," William & Mary Law School professor Allison Orr Larsen tells AP. Now, there's a clear partisan effect, which has benefited the GOP in recent years. Trump appointed 54 appellate judges, flipping the 11th Circuit to GOP control and expanding GOP-appointed majorities in the 5th, 6th, and 8th Circuit courts.
OSHA has issued only 10 emergency rules in its five decades, and there's no agreement in legal circles on how the COVID rule will fare in court.