It 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.