First, this shows both the upside as well as downside of getting a really good panel draw. As I mentioned when the opinion first came out, this was a very pro-plaintiff (i.e., left-of-center) panel. That's good for initially winning. But it has its downsides when it comes to the en banc vote, since it's not only people like me who can recognize a panel's particular tilt. Something that makes an en banc vote more likely, particularly (as here) in a high-profile, politicized case.
Second, the en banc order is exceptional for the number of judges recused. Some of the judges who recuse themselves do so for the typical reasons; e.g., Judge Reinhardt because the ACLU is counsel to the plaintiff (his wife is the executive director of the Southern California ACLU). But you've got others here that are case-specific; e.g., Judge Bybee, who's name by now is virtually synonymous with enhanced interrogation. Add to these two Judges McKeown, Gould, Milan Smith, and Ikuta and you're looking at 7 total recusals -- a really high number, and something you don't usually see.
So we'll see how this one comes out in the en banc process. It's bound to let a lot of attention.
