A New Wrinkle In The Ninth Circuit: Exclusive Content. Must Credit.
February 10, 2017

life-geo-washington-1785-ninth-cir-arg-2017It seems one of the other able appellate jurists has requested a vote of the 29 judges be taken — on whether to hold an en banc rehearing of the Trump stay request. [It is highly unlikely that enough “rehearing” votes can be mustered to carry that notion — a majority of 29, or 15 or more.] Even so, the parties have been ordered tonight to submit no more than 14,000 words each, on whether the case should be reheard en banc. Wild.

. . . .THOMAS, Chief Judge and En Banc Coordinator:

A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16.

The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3). . . .

An en banc hearing would involve more than 20 judges sitting at once. Is this more sand in 45’s gears? I think so. And the White House tonight is saying it may drop its Ninth Circuit appeal altogether. The RNC is saying the White House may not. Nutty, but my experienced take is that the Muslim Ban. . . is no more.




Meanwhile, In Brooklyn… 45 Is Likely To Lose. Again. His Brief Is Due, At High Noon Eastern, Tomorrow.
February 9, 2017

life-brooklyn-no-ban-stay-2017The very able trial level federal jurist in New York’s Eastern District (sitting in Brooklyn), Judge Carol Bagley Amon — just endorsed the parties’ expedited briefing schedule.

In Brooklyn, the posture of the Muslim Ban is that the enforcement of 45’s executive order has been stayed, until the court can be briefed and rule. That stay would expire on its own by February 21, 2017 — but now that the nationwide TRO entered in Seattle will continue until either the Supremes reject an appeal by Mr. Trump, or the trial level judge rules on a preliminary injunction, there is really no danger — if February 21 comes and goes, for the “banned people”.

Of course, 45 is very focused on trying to remove this stay — but again, that’s likely a loser — based on the Ninth Circuit’s unanimous opinion of this evening. Here’s the East Coast schedule then:

. . . .(1) Defendants will file their brief in response to Plaintiffs’ Emergency Motion for a Stay of Removal, as well as their motion to dismiss, by noon, February 10, 2017;

(2) Plaintiffs will file their responsive brief on both motions by February 16, 2017; and

(3) Defendants will file their reply by February 19, 2017. . . .

life-ninth-circ-ahmed-no-ban-02-06-17 [Separately, it looks more and more likely now, based on his raging ALL CAPS tweets tonight (charming!), that 45 will order the DoJ to appeal directly to the Supremes, on the Ninth Circuit decision. So much so, that the State of Washington sought — and was apparently granted — a waiver from filing its trial level brief, on the preliminary injunction, tonight.] But that Supremes gambit is a pure loser, for 45, in any event, IMHO. Now you know.

Here’s to hoping that copper colored, twisty silence isn’t the new normal. . . smile. . . .