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There are a few reasons why the Trump administration could be waiting. | AP Photo Is Trump stalling a travel ban appeal at 9th Circuit?

When President Donald Trump’s first travel ban executive order was effectively shut down by a federal judge, the Trump administration seemed to be in a huge rush to get the policy back on track.

This time? Not so much.

It took less than a day for Justice Department lawyers to file an appeal last month after U.S. District Court Judge James Robart blocked the key parts of Trump’s directive.

A few hours later — just after midnight Eastern Time — the federal government filed an emergency motion asking the San Francisco-based 9th Circuit to allow the president to move forward with his plan to halt travel to the U.S. from seven majority-Muslim countries and to suspend refugee admissions from across the globe.

A three-judge 9th Circuit panel unanimously turned down Trump’s request, prompting the president to redraft the executive order, dropping Iraq from the roster of affected countries and exempting existing visa-holders from the directive.

But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.

The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.

“A lot of people have talked about that,” said University of Richmond law professor Carl Tobias. “It seems hard to wait on this without undercutting the argument” that the travel ban order is needed to address an urgent national security threat, he added.

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.

“Maybe they looked at the motions panel this month and felt it was maybe, 2-1 [against them] … at best and they didn’t see any percentage in that so they figured let’s see what’s up next month,” Tobias said.

“It does not bespeak a lot of confidence in the merits of their position if the strategy here really is waiting until the calendar flips over on Saturday,” University of Texas law professor Stephen Vladeck added. “It’s both a long shot and strange one.”

A Justice Department spokeswoman declined to comment on the timing. A lawyer for the State of Hawaii, which obtained the broad restraining order, also declined to comment.

The feds’ apparent decision to slow walk the Hawaii case may have been bolstered earlier this month when five Republican-appointed 9th Circuit judges took the unusual step of publicly signaling that they would have upheld the original order. That wasn’t enough to reconsider the initial 9th Circuit panel decision refusing to let Trump proceed with his first order, but the dissenting opinion told federal government lawyers that there was a significant reservoir of support for their position among the appeals court’s judges.

Still, Democratic-appointed judges on the court’s active bench outnumber Republican nominees, 18-7, and the court’s senior ranks are split, 10-9, in favor of Democratic appointees. It’s also worth noting that a George W. Bush-appointed senior judge, Richard Clifton, joined two Obama appointees in turning down Trump’s emergency motion to reinstate his earlier policy.

There are also other potential hurdles facing Trump’s revised order at the 9th Circuit. Under that court’s procedures, cases involving the same subject matter are sometimes returned to the same judges who considered the issue the first time around. In addition, the first panel’s opinion is considered binding precedent that could affect a second ruling, even one by different judges.

That may be why the Justice Department initially asked that the first ruling be wiped out, although it eventually dropped that request.

Another explanation for the slow-roll in the 9th Circuit could be that the Justice Department sees more fertile ground elsewhere. A judge in Maryland blocked the visa-ban aspect of Trump’s revised order about two weeks ago, leading federal government lawyers to promptly file an appeal with the Richmond-based 4th Circuit.

That court has scheduled arguments on the issue for May 8. Unlike the 9th Circuit, the 4th Circuit announces its three-judge panels only a half an hour before arguments begin, in order to avoid what one attorney called “gaming the system.”

However, the 4th Circuit said in an order Monday that it might send the case directly to the court’s full bench, split among nine Democratic-appointed judges, five Republican appointees and one nominated by both Democratic and Republican presidents.

To some observers, the Trump administration’s odds at the 4th Circuit don’t look much better.

“In general, the court has moved to be much more moderate. It used to be the most conservative court in the country, but these days is really hard to predict,” Tobias said. “It has drifted from the right to the middle and maybe even a little to the left.”

“This is not your father’s 4th Circuit,” Vladeck joked. “I don’t think there’s any court of appeals where Obama has more of an impact.”

That said, the 4th Circuit’s leftward drift tends to be less pronounced in national security cases. That could give the federal government a fighting chance in front of a randomly picked three-judge panel, although the full bench seems like a bigger challenge, in part because the larger panel is unbound by earlier 4th Circuit precedents.

Another factor in the swirl of litigation: Trump’s pending nomination of Neil Gorsuch to the Supreme Court. A modest delay in the court proceedings on Trump’s travel ban could give Gorsuch time to be confirmed and take his seat on the high court — perhaps as soon as next week.

While his vote may not be a lock for the White House, Trump’s chances of getting a majority of the justices to back some kind of emergency relief that allows the travel ban to take effect seem decent with Gorsuch in place and infinitesimal without him.

Although the Justice Department has not yet appealed the Hawaii ruling — which blocks Trump’s policy worldwide — federal government lawyers have not been sitting on their hands in the case.

Two days after Watson issued his restraining order, the government asked him to “clarify” it, by narrowing it to cover just the visa ban and by limiting the provisions related to refugees, or dropping that portion altogether.

The judge gave the back of his hand to that effort, saying that the Justice Department’s arguments asked “the Court to make a distinction that the Federal Defendants’ previous briefs and arguments never did.”

The Justice Department could have appealed at that point, as well, but instead chose to embark on a 10-day effort to persuade Watson to let the temporary restraining order expire or to narrow it in precisely the way he rejected earlier. The judge has scheduled a hearing on that issue Wednesday.

Those options to seek clarification or to try to get the judge to narrow the relief in a preliminary injunction were also open when Robart issued his order last month, but the government didn’t use them.

Some greater clarity in the Hawaii litigation could come if Watson rules later this week, giving the federal government yet another chance to note an appeal. Any new stay motion filed over the weekend could be assigned to a new 9th Circuit panel, providing a verdict of sorts on the Trump administration’s legal strategy.

“I don’t think there’s any question that the government’s approach defies easy synthesis,” Vladeck said.