The integrity of the American judicial system rests on the appearance of impartiality, but in a high-stakes appeal involving Palestinian-American activist Mahmoud Khalil, that thin veneer is under intense scrutiny. Khalil is currently petitioning the Second Circuit Court of Appeals to remove a judge from the panel overseeing his case, citing a history that many argue makes neutrality impossible. The judge in question, Steven Menashi, previously served as a high-ranking official in the Trump administration's Justice Department. This isn't just a procedural spat over a single ruling; it is a fundamental clash between executive branch loyalty and judicial independence that could redefine how conflicts of interest are handled in the federal courts.
The Collision of Executive Power and Judicial Duty
Mahmoud Khalil, a graduate student at Columbia University and a prominent voice in the pro-Palestinian movement, finds himself at the center of a legal storm that began with his activism. His appeal concerns whether his rights were violated during law enforcement interactions and subsequent administrative actions. When the case reached the Second Circuit, the assignment of Judge Steven Menashi raised immediate alarms for Khalil’s legal team.
The core of the objection lies in Menashi’s former role as Special Assistant to the President and Associate Counsel to the President. During his tenure in the White House, Menashi was a key architect and defender of policies that Khalil’s lawyers argue are directly related to the subject matter of the current litigation. Specifically, Menashi was involved in crafting legal justifications for administration stances on campus activism, national security, and civil rights—the very areas where Khalil claims he was targeted.
Recusal is not a light request. Under federal law, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned. The standard is objective: would a person on the street, knowing all the facts, think the judge is biased? In Khalil’s view, the answer is a resounding yes. Having the man who helped build the legal framework you are fighting sit as your judge creates an environment where the outcome feels predetermined.
Why the DOJ Pedigree Matters
In the world of federal appointments, the "revolving door" between the Department of Justice (DOJ) and the bench is common. Usually, this is seen as a mark of prestige. However, when a judge has recently transitioned from a highly political role where they actively litigated or advised on the specific topics at hand, the boundary between advocate and arbiter disappears.
Menashi was not just any government lawyer. He was a lightning rod during his confirmation process due to his writings on "ethnonationalism" and his work under Education Secretary Betsy DeVos, where he helped reshape Title IX regulations. For an activist like Khalil, who focuses on identity-based rights and the intersection of government surveillance and political speech, Menashi’s presence on the panel is not a coincidence—it’s a barrier.
The legal strategy employed by Khalil’s team involves a "motion to recuse," a move that is notoriously difficult to win. Judges generally have a "duty to sit," meaning they shouldn't step down just because a party dislikes their politics. But the Khalil case argues this isn't about politics; it’s about prior participation. If Menashi had a hand in the policies or the specific legal theories being used to justify the government’s actions against Khalil, his participation violates the due process clause of the Fifth Amendment.
The Silence of the Second Circuit
Thus far, the court’s response has been a masterclass in judicial stoicism. This silence often masks a deep internal tension. Federal appellate panels are composed of three judges, and the dynamic between them is delicate. If one judge is perceived as having a personal stake or a pre-existing bias, it taints the entire decision-making process.
Consider the optics of a ruling. If the panel rules against Khalil with Menashi in the majority, the activist’s supporters will view the decision as a political hit job rather than a legal judgment. Even if the court rules in favor of Khalil, Menashi’s participation could be seen as an attempt by the judiciary to "launder" controversial executive branch policies by giving them a stamp of judicial approval.
The system is designed to avoid even the shadow of a doubt. Yet, we see an increasing trend where judges with deep partisan roots refuse to step aside. This creates a crisis of legitimacy. When the public begins to view the courts as merely a secondary theater for the same political battles fought in Washington, the authority of the law evaporates.
Precedent and the Problem of "Appearance"
History provides a murky guide for this situation. In the past, Supreme Court justices like William Rehnquist faced similar pressure to recuse themselves from cases involving the Nixon administration’s surveillance programs—programs Rehnquist himself had defended while at the DOJ. Rehnquist refused, arguing that a judge’s prior legal opinions shouldn’t disqualify them.
However, the Khalil case presents a more specific conflict. We are looking at a direct line between the policy-making of the recent past and the litigation of the present. The "appearance of partiality" is not an abstract concept here. It is grounded in the fact that Menashi was part of an administration that took an explicitly adversarial stance toward the type of activism Khalil represents.
The Mechanics of Judicial Selection
To understand why this is happening, you have to look at how panels are formed. In the Second Circuit, judges are assigned to cases through a computerized random selection process. On paper, it’s fair. In practice, it can result in "luck of the draw" scenarios that feel anything but random to the litigants.
When a conflict is identified, the judge usually decides for themselves whether to step down. There is no independent body that forces a recusal at the appellate level. This self-policing mechanism is the weakest link in the federal judiciary. It relies on the judge’s own ego and their commitment to the institution over their own influence.
The Broader Implications for Campus Activism
Khalil’s case is a bellwether. Across the country, university campuses have become the primary battleground for debates over speech, safety, and international politics. The government’s role in monitoring and regulating this speech is being litigated in dozens of jurisdictions.
If the Second Circuit allows Menashi to remain on the panel, it sets a precedent that former executive branch officials can sit in judgment of the very policies they helped implement. This effectively grants the executive branch a "permanent seat" on the bench. For activists, this means the court is no longer a neutral forum for grievances against the state, but rather a final extension of the state’s power.
The technical arguments in Khalil’s appeal—dealing with the Fourth Amendment, standing, and the scope of administrative law—are complex. They require a judge who can look at the facts with fresh eyes. A judge who has already spent years arguing that the government has broad latitude to crack down on dissent is unlikely to find that the government overstepped in this specific instance.
A Systemic Failure of Oversight
The refusal of judges to recuse themselves is part of a larger trend of judicial emboldenment. We see it in the highest courts and we see it in the circuits. The checks and balances intended to keep the judiciary above the fray are failing.
Legislative fixes, such as a mandatory code of conduct with enforcement mechanisms, have stalled in Congress. This leaves litigants like Khalil in a legal limbo. They are forced to argue their case before a judge they believe is a stakeholder in their defeat. It turns the courtroom into a rigged game.
The legal community is watching the Second Circuit closely. If the court ignores the motion for recusal, it will be a signal that the "appearance of impartiality" is a dead letter. It will tell every activist and every citizen that their identity and their political stances will be judged not by the law, but by the former employees of their political opponents.
The Human Cost of Legal Gridlock
For Mahmoud Khalil, this is not a theoretical exercise in constitutional law. It is his life. The outcome of this appeal determines his ability to live, work, and speak in a country that prides itself on the First Amendment.
When a judge refuses to step down despite a clear overlap between their past work and their current case, the individual at the center of the storm is the one who pays the price. The delay caused by these procedural battles keeps justice out of reach. It creates a chilling effect on others who might speak out, fearing that if they ever end up in court, the deck will be stacked against them from the start.
The motion to remove Judge Menashi is a demand for a fair fight. In a system that claims to be blind, the presence of a judge with such a clear ideological and professional lineage is a glaring sight. The Second Circuit has the opportunity to affirm that the court is a place of law, not a place of lingering executive influence.
If they fail to act, the damage to the court’s reputation will outlast any single ruling. The public’s trust is not a renewable resource; once it is spent on protecting the career interests of a few well-connected judges, it cannot be easily bought back. The decision on Menashi’s recusal will reveal exactly where the Second Circuit’s loyalties lie—with the traditions of impartial justice or with the political elite who now wear the robes.
Every day that passes without a ruling on the recusal motion is a day that the legitimacy of the eventual decision erodes. The court must recognize that in the eyes of the law, the perception of bias is just as damaging as bias itself. Protecting the institution means knowing when to step aside.
