President Trump could get another shot before the appellate court that rejected his ban on immigrants from seven predominantly Muslim countries.
An anonymous judge on the Ninth Circuit Court of Appeals has filed an unusual request for a vote on whether a larger panel of judges should rehear the case.
Typically the losing party, not a circuit judge, requests what’s called an “en banc” hearing.
Three Ninth Circuit judges decided the case last week. An en banc hearing would bring more judges into the case.
“The judge must provide a memorandum explaining the reasons for the call for a vote,” said William Jacobson of Cornell Law School, publisher of the Legal Insurrection Web site. “But we don’t get to see it.”
The move set off fevered speculation among legal experts.
“What I read into it is one judge eager to write a dissent,” tweeted Laurence Tribe, a constitutional-law professor at Harvard Law School.
“It could be that a judge thinks this is of such importance and is getting such press coverage that the full court needs to vote whether to hear it en banc,” Jacobson told The Post.
The move also may be an attempt to send up a flare to the US Supreme Court, Jacobson said.
“It could be a signal to the Supreme Court that there’s a judge on the court who is very concerned about this, that maybe you’d better consider taking this,” he said.
Some observers also speculate that the anonymous judge backs the decision — and the request for an en banc hearing is actually a tactical move to keep it in place.
Jacobson explained that the anonymous judge might want “about a tactical motive, “such as a judge who likes the decision and wants to keep the executive order non-operative pending further appeals processes.”
Without such an action, he said, the case could go back to the district court for trial — where the Trump administration might ultimately prevail.