On Monday, the U.S. Court of Appeals for the Fourth Circuit took an unusual step in the appeal regarding President Trump’s Muslim ban: It asked the parties if they would prefer to bypass the usual three-judge panel and, instead, proceed to initial en banc review (i.e., have the appeal decided by all fifteen active judges). That the Fourth Circuit made this inquiry is itself fascinating for many reasons—not least that, even when the Fourth Circuit is expressly asked to hear a case en banc, it says no 99.7% of the time. Equally interesting, however, are the responses that the parties filed today. Both expressed support for proceeding directly to en banc review, although they had different levels of enthusiasm in doing so.
The plaintiffs challenging President Trump’s Executive Order expressed unqualified support for immediate en banc review. That is not surprising. Of the fifteen active judges on the Fourth Circuit, nine were nominated by Democrat Presidents and six were nominated by Republicans (one of the latter, Chief Judge Gregory, was initially a recess appointment by President Clinton and re-nominated by President G.W. Bush). While it is often overly simplistic to make assumptions about judges on partisan lines, here, that oversimplification probably works even further in favor of the plaintiffs: The aversion to President Trump’s Executive Orders has not been (and should not be) limited to Democrat-appointed judges; multiple Republican-appointed judges considered and blocked President Trump’s first Executive Order.
The Government’s support for immediate en banc review was more tepid and expressly qualified by whether such review would “delay the briefing, argument, or resolution of the stay or the appeal.” Despite the Government’s indication that it supports en banc review, there is good reason to think that it would have preferred to follow the ordinary course. First, given the above composition of the Fourth Circuit, the Government likely would have preferred to roll the dice on a three-judge panel, hoping for a subset of judges that have a willingness to look past the Order’s obvious discriminatory purpose. Second, as many have observed, the Government has made an obvious strategic decision to slow-pedal its appeals pertaining to the Muslim ban—likely to guarantee that Judge Gorsuch is confirmed by the time the issue reaches the Supreme Court (I previously described the administration’s dilemma on how aggressively to appeal here). Although the administration is in good shape to have a Justice Gorsuch on the Supreme Court, proceeding directly to en banc review eliminates one additional procedure the Government could have invoked down the road to stall the case, while still giving some impression that it is aggressively pursuing its appeals.
So why did the Government indicate support for immediate en banc review? Likely because the Fourth Circuit had given it no other choice: If the Government had opposed rehearing by the full court, it would have looked like the sort of blatant partisan calculation that judges tend to dislike and it would have directly undermined the Government’s claimed (but at this point, laughable) urgency in reinstating the Executive Order. If I am right about this, the Government’s best attempt to signal its reluctance for en banc review—its qualification that it would like to avoid any “delay”—is as clever as it is ironic.