While Justice Samuel Alito’s refusal to recuse from Jan. 6 cases becomes less defensible with each passing day, another Republican-appointed judge just gave an example of how to recuse from a contentious dispute — even when the judge doesn’t think they’ve done anything wrong.
Trump appointee Ryan Nelson, who sits on the 9th U.S. Circuit Court of Appeals, recused Thursday from a case brought by Palestinian rights groups that are challenging the Biden administration’s military support of Israel. Nelson had recently traveled to Israel with a judicial delegation.
The plaintiffs argued that he should step aside to avoid the appearance of partiality (they also claimed that he might have personal knowledge of disputed evidentiary facts).
In agreeing to recuse, Nelson wrote that it’s “far from certain that an objective observer would reasonably question my impartiality.” But he concluded that, “out of an abundance of caution, the best course in this specific case (which may not apply in other cases) is to recuse.”
Is that so hard?
For Alito, it is apparently.
To be sure, there are differences between Supreme Court justices and lower court judges, who can be replaced with other judges and aren’t the final judicial word on important matters. But that only gets Alito so far, because it doesn’t cure the appearance of impropriety that he won’t acknowledge.
Whether it’s due to the inherent message sent by flying flags like those carried by Capitol rioters or due to the questions around his explanation for that — or both — there’s at least an appearance of impropriety with Alito weighing in on these crucial disputes. In a situation like this, it’s even more important for a justice to step aside, not less. The Supreme Court still hasn’t decided Trump’s immunity claim, which is holding up a trial in the federal election interference case; nor has it decided the appeal over Jan. 6 obstruction charges that could also affect Trump’s case. Neither appeal was necessary to take up in the first place, and Alito and Justice Clarence Thomas (who should also be recused) are participating not only in the outcome but in the procedural movement (or lack thereof) that’s delaying Trump’s trial. No one should hold their breath waiting for Alito to follow his fellow GOP appointee’s lead. But his likely failure to do so only magnifies its indefensibility. With people bound by the justice’s rulings doubting his impartiality, Alito could choose the cautious route but instead is opting for the more dangerous one. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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