Plaintiffs suing the Biden administration over Gaza policy have filed an emergency motion asking Judge Ryan Nelson of the 9th U.S. Circuit Court of Appeals to recuse himself from the case. The motion argues that Judge Nelson should recuse himself because he participated in a trip to Israel sponsored by the World Jewish Congress (WJC) in March. The plaintiffs claim that the purpose of the trip was to influence U.S. judicial opinion on the legality of Israeli military action against Palestinians.
The plaintiffs in the case include Palestinian human rights organizations and individual Palestinians, such as Dr. Omar Al-Najjar, who has firsthand experience working in Gaza’s devastated health infrastructure. In November, they filed a complaint against President Joe Biden and other top officials, seeking an injunction to prevent the U.S. from being complicit in what they describe as the unfolding genocide in Gaza.
The district court initially dismissed the case in January but urged the administration to reevaluate its support for the military siege against Palestinians in Gaza. The plaintiffs appealed to the 9th Circuit, and Judge Nelson was selected to be part of the three-judge argument panel.
In March, Judge Nelson joined 13 other federal judges on a trip to Israel sponsored by the WJC. The judges met with high-ranking members of the Israel Defense Forces to discuss Israel’s military operation in Gaza and the application of international humanitarian law during war. They also had sessions with attorneys defending Israel before the International Court of Justice, former Israeli President Reuven Rivlin, and members of Israel’s Supreme Court and Knesset.
During the trip, the judges also met with a high-ranking official at the U.S. Embassy in Jerusalem to gain an American perspective on the situation. Secretary of State Antony Blinken, one of the defendants in the case before the 9th Circuit, is involved in the proceedings.
Judge Matthew Solomson, who helped organize the delegation, wrote in a LinkedIn post that Israel’s military culture is highly attuned to international law, with commanders consulting lawyers at every step. He also mentioned that the judges watched video clips of Israeli military lawyers stopping strikes based on proportionality and collateral damage assessments.
The plaintiffs argue in their recusal motion that the judges’ participation in the trip, as covered by the Israeli press, allowed them to gain a deeper understanding of the legality of Israel’s conduct in Gaza. The WJC’s Chief Marketing Officer, Sara Friedman, emphasized the importance of bringing people who understand the judicial system and laws of war to Israel to support the state and show them the truth about the situation.
Legal ethics experts have differing opinions on whether Judge Nelson should recuse himself from the case. Peter Joy, who studies legal ethics at Washington University in St. Louis, believes that the plaintiffs make a strong case for recusal since the purpose of the trip was to present Israel’s point of view. However, Cassandra Burke Robertson, director of the Center for Professional Ethics at Case Western Reserve University School of Law, believes that it is not a clear-cut case for recusal unless specific information about the legality of the operation was provided.
The 9th Circuit is set to hear oral arguments in the case on January 10. The plaintiffs have asked the court to rule on their emergency recusal motion before then. The Justice Department has not opposed the recusal motion but declined to comment further on the case.
