Watford, who just joined the court from Munger, Tolles & Olson in May, wrote a third opinion. Only one paragraph long, it noted simply that the questions surrounding prejudice remain unresolved. "These important and unsettled issues should be resolved by the court sitting en banc," he wrote.
Obama appointees Nguyen, who was confirmed in May, and Christen, confirmed in December, concurred in Watford's opinion. So did Pregerson, Wardlaw, Paez, Fletcher, Fisher and Berzon but not Reinhardt.
Obama's two other appointees, Mary Murguia and Andrew Hurwitz, did not sign any of the concurrences.
Generally, 15 of the 28 active Ninth Circuit judges must vote to take a case en banc. Although 10 judges publicly dissented from the Stokley en banc vote, it's possible other judges voted the same way, as a few members of the court prefer not to issue public dissents from denial of en banc review.
Jonathan Bass argued the case for the Arizona attorney general.
Scott Graham writes for The Recorder in San Francisco, an affiliate of the Daily Report.