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International Law

Jun. 10, 2024

9th Circuit judge recuses from case because of Israel trip

Plaintiffs' attorneys filed an emergency motion last week asking that 9th Circuit Judge Ryan D. Nelson be disqualified from the panel because he was one of 14 federal judges who went on the trip.

9th U.S. Circuit Court of Appeals Judge Ryan D. Nelson recused himself from a case accusing the Biden administration of enabling genocide in Gaza because he traveled to Israel and met with government officials there.

A three-judge panel will consider Monday an appeal filed by Defense of Children International - Palestine of Senior U.S. District Judge Jeffrey S. White's ruling that dismissed a lawsuit against President Joe Biden and other top administration officials for their military support of Israel, which they say is "complicit in the ongoing genocide of the Palestinian people in Gaza."

Plaintiffs' attorneys filed an emergency motion last week asking that Nelson, an appointee of President Donald Trump, be disqualified from the panel because he was one of 14 federal judges who went on a trip to Israel for a judicial education conference sponsored by the World Jewish Congress.

Baher A. Azmy, an attorney with the Center for Constitutional Rights, argued that Nelson's participation in the trip, "which appears designed to influence U.S. judicial opinion regarding the legality of Israeli government actions that are a core issue in this case -- raises an appearance of impropriety."

"A reasonable person with knowledge of all the facts might have reason to question Judge Nelson's impartiality in this case," Azmy wrote, adding that the trip was an "extrajudicial source of information" designed to influence "disputed evidentiary facts" in the appeal.

Nelson, in an order filed Thursday, contested Azmy's assertions but recused himself anyway.

"Appellants do not allege any basis for mandatory recusal," he wrote, questioning the assertion that he has personal knowledge of any facts in the case.

"They cite no comments I have made about any issues related to this case," Nelson added. "Thus, it is far from certain that an objective observer would reasonably question my impartiality. That said, out of an abundance of caution, the best course in this specific case (which may not apply in other cases) is to recuse." Defense of Children - Palestine v. Biden, 24-704 (9th Circ., filed Feb. 8, 2024).

After Nelson withdrew from panel, he was replaced by 9th Circuit Judge Consuelo M. Callahan, an appointee of President George W. Bush.

Johnny Sinodis, a partner with Van Der Hout LLP who also represents the plaintiffs, said in a phone interview Friday that Nelson acted correctly.

"Judge Nelson made the right decision to recuse himself as it was clearly needed to ensure the appearance of impartiality," he said. "This case against top U.S. officials for aiding and abetting Israel's genocide raises issues of the utmost importance, and the appearance of fairness is paramount given the stakes."

Charles Geyh, a professor at Indiana University Maurer School of Law and an expert of judicial conduct, said Nelson "did the right thing for the wrong reasons."

"I disagree that people wouldn't question his impartiality," he said, as the judge "self-selected into a trip where he got one side of the story."

The question in the case is likely to be a narrow one. White, a Bush appointee, concluded that "it is plausible that Israel's conduct amounts to genocide" but ruled that under precedent there is nothing he can do about that.

"Because any determination to challenge the decision of the executive branch of government on support of Israel is fraught with serious political questions, the claims presented by Plaintiffs here lie outside the Court's limited jurisdiction," he wrote.

Two other 9th Circuit judges went on the World Jewish Congress trip: Judge Patrick J. Bumatay and Judge Lawrence VanDyke, both Trump appointees.


Craig Anderson

Daily Journal Staff Writer

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