By Bob Egelko, Courts ReporterJune 6, 2024 (SFChronicle.com)
Pro-Palestinian messages appear outside the Ronald V. Dellums Federal Building U.S. Courthouse in Oakland in January as a judge was hearing a case brought accusing President Joe Biden and top officials of aiding genocide in Gaza. A 9th Circuit judge hearing the appeal has recused himself after traveling to Israel.
A federal appeals court judge who recently traveled to Israel and met with officials supporting the nation’s military actions said Thursday he is recusing himself from a case in which Palestinian-rights advocates have accused President Joe Biden of enabling genocide in Gaza.
In a filing with the 9th U.S. Circuit Court of Appeals in San Francisco, Judge Ryan Nelson denied having any bias or “personal knowledge of disputed evidentiary facts” about the case as the result of his recent trip and said it was “far from certain that an election observer would reasonably question my impartiality,” as claimed by advocates who sought his withdrawal from the case.
“That said, out of an abundance of caution, the best course in this specific case (which may or may not apply in other cases) is to recuse,” he wrote.
Nelson had been a member of the three-judge panel that will convene Monday to hear an appeal of a judge’s dismissal of a suit accusing Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin of complicity in genocide.
The court said the hearing will take place as scheduled, with Judge Consuelo Callahan, an appointee of President George W. Bush, replacing Nelson, who was appointed by President Donald Trump. The other two judges on the randomly selected panel are Daniel Bress, a Trump appointee, and Jacqueline Nguyen, appointed by President Barack Obama.
Judges usually recuse, or withdraw, from a case when they conclude that they have a conflict of interest or that they would be seen as biased. Democrats in Congress have asked Supreme Court Justice Samuel Alito to recuse himself from Trump’s criminal cases because of two flags outside Alito’s homes that were also flown by supporters of Trump’s challenges to the 2020 election results, but Alito has declined.
Nelson is one of 14 federal judges who visited Israel in March in a trip arranged by the World Jewish Congress, which describes itself as ”the diplomatic arm of the Jewish people.”
Plaintiffs in the lawsuit sought Nelson’s recusal in a filing Tuesday night after the court announced the members of the panel that would hear the case. They said the judges met with Israeli military and legal officials in a visit “designed to influence U.S. judicial opinion regarding the legality of ongoing Israeli military action against Gaza.”
They reported that one participant, Judge Matthew Solomson of the U.S. Court of Federal Claims, thanked Nelson after the trip for “his friendship and willingness to publicly bear witness to the barbaric and indefensible attacks of Hamas against the Jewish people.”
“We believe Judge Nelson reached the right conclusion and we’re appreciative of him doing it quickly,” Marc Van Der Hout, a lawyer for the plaintiffs, said Thursday. He said the judge’s participation in the case would have caused, “at a minimum, the appearance of a lack of impartiality.”
Following an Oct. 7 attack by Hamas that killed 1,200 Israelis, Israel has killed more than 36,500 Palestinians, according to Gaza health officials, in addition to cutting off supplies of food and water, destroying schools and hospitals and driving most of the population from their homes.
Genocide is defined by an international treaty as actions “committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.” The International Court of Justice, in a suit by South Africa, has found “plausible” evidence of genocide by Israel in Gaza and has told Israel to halt its military operations in the city of Rafah, an order Israel has rejected.
Biden has denied Israel is committing genocide but has called for a cease-fire. In a ruling in January that dismissed the lawsuit, U.S. District Judge Jeffrey White of Oakland said he found strong evidence that Israel’s military actions were “intended to eradicate a whole people” and “plausibly” could be considered genocide.
But White agreed with the Biden administration’s lawyers that “disputes over foreign policy are considered non-justiciable political questions” that courts have neither the competence nor the authority to decide.
Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko
June 6, 2024
Bob Egelko
COURTS REPORTER
Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.
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