Judge Costa gives a long and scholarly explanation for the earlier denial of a stay in this order. Judge Clement gives a lengthy and scholarly reply.
But this (h/t Steve Klepper) at the end of Judge Clement’s dissent is jarring:
This case presents several extraordinary issues. Unfortunately, this court’s usual procedures do not appear to permit en banc review of this denial of a stay even if a majority of the active judges would otherwise grant it. I am afraid defendants have simply had the poor luck of drawing a majority-minority panel. I trust that in light of this, the State will pursue a stay in the Supreme Court because of the injustice that results from the joint efforts of the district judge and the motions panel majority. I also encourage the Stat to move for an expedited appellate process before this court, preferably seeking an April or May sitting—it might yet be possible for this court to undo its own mistake.
The term “majority-minority” usually refers to districts with racial or ethnic minorities drawn to avoid or solve Voting Rights Act issues. All the judges here are white, but the two in the majority (Costa and Dennis) were appointed by Democratic presidents.
Judge Clement seems to be lamenting the fact that because stays cannot be referred to the full 5th Circuit, where Republican-appointed judges outweigh Democratic-appointed ones, the random judicial draw has given the state of Mississippi the short end of the stick.
It might be right as a matter of politics that the party of the appointing judges matters a lot in these political cases, but it is surprising to see a 5th Circuit judge make this point so directly.