The "right" court will hear challenge to Biden's vaccine mandate

AP Photo/Brennan Linsley, File

As you’ve likely heard by now, there are a number of challenges to President Biden’s vaccine mandates working their way through the courts at the moment. Because these challenges are coming up through disparate court circuits, one of them had to be chosen to consolidate the various challenges together and hear them as a group. Using an odd but traditional process to make the selection, the 6th Circuit Court wound up being given the honor of deciding the matter. (At least for now.) And how did they make that decision? By literally pulling a ping pong ball out of a bin. But when the Associated Press tackled the topic, more time was spent identifying the 6th Circuit as being “right-wing” and comprised of judges “nominated by Republicans” than the actual substance of the challenges.

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.

This AP coverage is kind of amazing in the way it fixates entirely on the makeup of the court. The headline for the article starts with “GOP-majority court chosen…” Then, as you can see in the excerpt above, the first three paragraphs are primarily focused on the number of challenges coming from “Republican-led states” and “conservative organizations.”

The article then goes on to break down the numbers, showing that eleven of the 16 full-time judges on the 6th Circuit were appointed by Republican presidents. Adding in the “semi-retired” judges who also hear cases, they conclude that the split is “19-9 in favor of Republicans.” The article then sweetens the deal further by pointing out that six of the judges were nominated by Donald Trump.

We are next helpfully informed that the court where the mandate was put on hold was the 5th Circuit. That court is described as “another court where a majority of judges were nominated by Republicans.” The article then moves on to describe unnamed “legal experts” who are “concerned about… the politicization of both federal and state courts,” questioning whether “justice is fairly administered or dispensed through a partisan lens.”

The next seven paragraphs consist of nothing but a discussion of which presidents nominated judges to each court and how unfair this all must seem. You have to work your way down to the 17th paragraph of the article before any serious discussion of the mandates themselves and the basis for the challenges that are being considered is seen.

One other thing that’s missing from this report is any mention of the fact that none of these court selection proceedings may wind up mattering in the end. Thus far, the Supreme Court has been more than generous in allowing executive mandates to stand, at least if they come from the state level. Despite the obvious five and a half to three and a half split on the Supreme Court in favor of more conservative-leaning justices (you can really only count Roberts half of the time at best), there is no assurance that SCOTUS will strike down the mandate when this lands in their laps.

But what the Associated Press and a number of other liberal-leaning news outlets are actually doing here is paving the way for later complaints if the mandate isn’t eventually upheld. They are questioning the validity of the courts, preparing to say (if it doesn’t go their way) that the mandate was only struck down because of biased, ideologically slanted courts. I’d love to be wrong, but I think it’s a pretty safe bet that this story is going to turn out that way.