The State of Hawaii is asking a federal appeals court considering the legality of President Donald Trump’s revised travel ban executive order to dramatically expand the number of judges set to hear the case.
In a filing Tuesday, lawyers for the state asked the San Francisco-based 9th Circuit Court of Appeals to bypass the typical three-judge panel and have the matter heard by an en banc court usually consisting of 11 judges.
"The lawfulness of President Trump’s executive action and the nationwide injunction imposed on Sections 2 and 6 by the Court below are unquestionably issues of pressing, nationwide concern," Hawaii’s attorneys wrote. "Those issues merit the attention of the full Court."
The move could expedite the case’s path to the Supreme Court and could also increase the chances of a ruling against the White House. A randomly selected three-judge panel could consist mostly or entirely of Republican appointees.
However, if a larger set of 11 judges were selected, the chances of a GOP majority seem slim. Democratic 9th Circuit appointees in active status outnumber their GOP colleagues, 18-7.
In addition, an appeal heard initially by an en banc court would be heard solely by active judges, sidelining the senior judges who are more evenly divided along party lines.
The appeal is currently set to be heard May 15 in Seattle, by a slate of three judges not yet announced.
The appeal was filed not by Hawaii, but by the Justice Department, after a judge in Honolulu imposed a preliminary injunction blocking key parts of Trump’s revised executive order, including a halt to issuance of visas to citizens of six majority-Muslim countries and a suspension of refugee admissions to the U.S. from across the globe.
Hawaii’s filing said Justice Department attorneys said the federal government supports the initial en banc hearing, but only if it does not delay the appeal or its resolution.
The other federal appeals court considering Trump’s revised travel ban, the Richmond-based 4th Circuit Court of Appeals, announced Monday that it will sit en banc on May 8 — with as many as 15 judges — in order to hear the dispute. That appeal arose from a Maryland-based judge’s injunction against the visa-ban portion of Trump’s order.
Trump abandoned his earlier travel ban order after large swathes of it were blocked by a Seattle-based federal judge. A unanimous three-judge 9th Circuit panel declined to overturn that injunction. Some members of the appeals court asked for an en banc hearing after that ruling, but that move failed after it did not muster a majority of the court’s active judges.