Plaintiffs suing the Biden administration over Gaza policy have asked a federal appellate judge to recuse himself because of a trip he took to Israel in March. The World Jewish Congress, which sponsored the junket for 14 federal judges, framed the delegation as part of Israel’s “fight in the international court of public opinion.”
In an emergency motion filed Tuesday, the plaintiffs’ lawyers argued they were “ethically compelled” to ask Judge Ryan Nelson of the 9th U.S. Circuit Court of Appeals to recuse himself because the WJC trip was “explicitly designed to influence U.S. judicial opinion regarding the legality of ongoing Israeli military action against Palestinians.”
The plaintiffs are a mix of Palestinian human rights organizations and individual Palestinians, including Dr. Omar Al-Najjar, who has written about his experiences working in the decimated health infrastructure in Gaza. In November, they filed a complaint in federal court against President Joe Biden and other top officials, seeking “an injunction requiring the United States to fulfill its international law duty to prevent and cease being complicit — through unconditional financial and diplomatic support — in the unfolding genocide in Gaza.”
The district court dismissed the case in late January but urged the administration “to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” The plaintiffs appealed to the 9th Circuit, which is scheduled to hear oral arguments next week. Nelson’s selection for the three-judge argument panel was announced on Monday.
In March, Nelson joined 13 colleagues from the federal bench on the WJC-sponsored trip. Like Nelson, many of the judges on the trip were appointed by former President Donald Trump.
According to a disclosure about the trip, the judges met with high-ranking members of the Israel Defense Forces about “Operation Swords of Iron” — what Israel calls its current military operation in Gaza — and the application of international humanitarian law during war. The trip also included sessions with one of the attorneys defending Israel before the International Court of Justice, Tal Becker; former Israeli President Reuven Rivlin; and members of Israel’s Supreme Court and Knesset, the disclosure shows.
The judges met with a high-ranking official at the U.S. Embassy in Jerusalem, to get the “American perspective,” one judge told the Jerusalem Post. State Department Secretary Antony Blinken is one of the defendants in the case before the 9th Circuit.
In a LinkedIn post summarizing lessons from the trip, Judge Matthew Solomson of the Federal Court of Claims, who helped organized the delegation, wrote, “Israel’s military culture is very attuned to international law; commanders consult lawyers at every step and the lawyers have veto power. We watched many video clips of Israeli military lawyers stopping strikes based on proportionality and collateral damage assessments. Their enemy doesn’t play by such rules.”
In late March, Nelson and Solomson spoke about the trip at a lunch talk hosted by Harvard Law School’s chapters of the Federalist Society and the Jewish Law Students Association. Their remarks were not made public, but Solomson wrote in a LinkedIn post that Nelson “expressed his inspiring faith in God and, concomitantly, an optimistic view of the future.”
In their recusal motion, the plaintiffs highlight coverage of the trip in the Israeli press, particularly by the English-language ILTV. “This invaluable experience allowed them to delve deeper into the legality of Israel’s conduct in the operation,” ILTV said of the trip in an Instagram post.
“At this time, when Israel is facing so much in the court of public opinion and in the courts around the world,” WJC’s chief marketing officer, Sara Friedman, told ILTV in March, “it’s so important for people who understand the judicial system, who understand the laws of war, to come here.”
“The World Jewish Congress is sending a message by bringing these groups that we are supporting the state of Israel,” Friedman told ILTV. “By bringing these groups here and showing them the truth about what is going on, it’s the best diplomacy we can do.”
Friedman did not immediately respond to The Intercept’s request for comment about the trip. The Intercept also asked WJC for copies of materials given to the judges during the trip.
An anonymous statement by federal judicial clerks last month criticized the Israel trip.
Peter Joy, who studies legal ethics at Washington University in St. Louis, said it is often difficult to predict how judges will rule on recusal.
“They make a strong case for the judge to step down,” said Joy. “Here’s somebody who went on a trip, the explicit purpose of which was to try to get Israel’s point of view across.”
Cassandra Burke Robertson, director of the Center for Professional Ethics at Case Western Reserve University School of Law, did not think it was a clear-cut case for recusal.
“The closest issue here is that it sounds like officials on the trip may have been providing specific information about the legality of the operation,” Robertson said. “But if the information was more general, then I don’t think it would be disqualifying.”
“Although Judge Nelson certainly COULD recuse, I don’t think recusal is required under the statute or Judicial Canons,” Rory Little, a professor at UC Law San Francisco, told The Intercept in an email. “He might recuse; it’s not a clear case in either direction.”
Arguments are scheduled for June 10, and the plaintiffs asked the 9th Circuit to rule on their emergency recusal motion by Thursday. A spokesperson for the 9th Circuit said the panel will address the motion, “presumably before Monday.”
The Justice Department, which did not oppose the recusal motion, declined to discuss the case.
Correction: June 6, 2024
The story has been updated to correct the date of the oral argument to the 9th Circuit. It is June 10, not January.
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