The vacancy was left by Judge Edward Mansfield, who is now on the Iowa Supreme Court. Twenty-six attorneys, judges and magistrates have applied for the position, hailing from all over Iowa, including the eastern corridor, the capital city and Missouri river cities like Sioux City.

Many of the applicants are not green to the judicial nomination process; just under half of the applicants most recently applied for one of the three Iowa Supreme Court vacancies early this year.  Applicants include Assistant Attorney General Jeanie Kunkle Vaudt, of West Des Moines, Iowa Legal Aid’s managing attorney Frank Tenuta, of Sioux City, and district Associate Judge Nathan Callahan, of Cedar Falls.

Michael Keller, an attorney from Des Moines, will be the first interviewee today. Des Moines attorney George F. Davison will kick off tomorrow morning’s list. A complete list may be found on the Iowa Judicial Branch’s website.

Judicial Branch officials are scheduled to complete the 26 interviews by noon tomorrow.

As with the Supreme Court selection, the Commission will select a slate of three nominees for Gov. Terry Branstad. The Governor must appoint the new judge within 30 days of receiving the slate.

The IRS is thought to have begun audits on at least 12 medical marijuana dispensaries in California under the determination that past business deductions are invalid because of a clause in the federal tax code prohibiting any business that traffics in Schedule I or II drugs from making business deductions on their tax returns. The move could bankrupt every dispensary that it targets. The first dispensary to receive a final audit decision from the IRS is the Marin Alliance for Medical Marijuana (MAMM) in Fairfax, Calif.

Lynette Shaw, founder and owner of MAMM, is hoping to strike back before the IRS can deliver any more “final determinations” to other dispensaries currently being audited. Shaw intends to file an appeal in U.S. Tax Court within the month. There is actually a precedent for just such a case, when in 2007, a San Francisco dispensary primarily catering to terminal AIDS patients got its payment cut down to just over 1 percent of what the IRS originally said it owed in back taxes.

Shaw, however, seems to almost hope that a tax judge rules against her. A successful appeal of such a ruling would guarantee that neither MAMM nor any other dispensary in California or any other state would have to worry about future IRS audits. The next step would be the Ninth Circuit Court of Appeals, and Shaw is prepared to take the case to the Supreme Court if necessary.

Shaw says she hopes to do more than just override the tax code. She calls the IRS applying regulations meant for illicit drugs to something considered medication by state governments “an abrogation of states’ rights.” But she also intends to challenge the very classification of marijuana that has allowed the IRS to go after MAMM and other dispensaries.

“The Constitution says that all American laws shall be based upon a rational basis,” she says. “I’ve got a truckload of evidence to argue that this doesn’t pass the muster of rational basis.”

Marijuana joins heroin and ecstasy, among others, as a Schedule I drug on the Drug Enforcement Agency’s list of drug classifications. Cocaine, in contrast, is classified less harshly as a Schedule II drug. Shaw hopes that marijuana will be reclassified as Schedule III, next to ketamine and steroids, or even IV, like a slew of prescription drugs. The tax deduction disqualification applies only to Schedule I and II drugs.

Indeed, the federal criteria for Schedule I drugs seems not to describe marijuana on any count. The U.S. Code reads:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Drugs are supposed to meet all three criteria before being classified as Schedule I, and yet marijuana does have an accepted medical use in 15 states, plus Washington, D.C., and there is no evidence whatsoever that marijuana use, medical or otherwise, poses a safety risk, except for the threat of certain types of cancer that marijuana shares with tobacco.

Lynette Shaw hopes she can get a federal court to agree with that assessment; if a tax judge rules against her and no appellate court will see things her way, she and most everyone else in her situation will be out of business. It may prove quite a challenge, because drug scheduling affects more than just tax allowances; the potential impact of rescheduling on mandatory minimum sentences alone might keep judges from wanting to open that can of worms. But Shaw insists that she’s not asking for a lot. “This is a very conservative action,” she says. “We’re not trying to end the drug war. We just want reclassification.”

Hazleton passed its ordinance in 2006. It was considered one of the toughest laws against illegal immigration at the time. The ACLU, along with other rights groups, filed a suit on behalf of the city’s landowners, business owners and residents, and the law was found unconstitutional by a federal court in 2007. In his decision, Judge James M. Munley wrote that the 14th Amendment applies to everyone in the U.S., not just legal residents.

The city of Hazleton appealed that ruling to the 3rd Circuit Court of Appeals, which today agreed the city’s law was unconstitutional because it preempts federal immigration law:

Deciding which aliens may live in the United States has always been the prerogative of the federal government…To be meaningful, the federal government’s exclusive control over residence in this country must extend to any political subdivision. Again, it is not only Hazleton’s ordinance that we must consider. If Hazleton can regulate as it has here, then so could every other state or locality.

Still, future cases on anti-immigration laws are up in the air, The Los Angeles Times reported. The Supreme Court will hear an Arizona case in December to determine whether states can strip business licenses from companies that knowingly hire illegal immigrants. The Obama administration and the U.S. Chamber of Commerce have pushed for the court to strike down the law, which was upheld by an appeals court because states traditionally control business licensing.

But chances are that her critics will seize on the speeches and writings pertaining to race and discrimination — the primary source of controversy for this nominee. Like a 1974 letter to the editor of the Daily Princetonian in which, as an undergraduate, she criticized “an institutional pattern of discrimination” at the college, or a letter that criticized the lack of diversity among candidates considered to be a university Dean. Then there’s the 1981 letter to New York Governor Hugh Carey from the Puerto Rican Legal Defense and Education Fund, written while Sotomayor was on the organization’s board, which said that “capital punishment represents ongoing racism within our society.”

Those who have called Sotomayor “racist” will likely charge, based on these and a smattering of other comments in speeches or reports addressing gender or race discrimination during her three decades as a lawyer, that she’s too focused on remedying discrimination and therefore likely to be an “activist” on the Supreme Court supporting race-based remedies.

As I’ve written before, given how much Chief Justice John Roberts has pulled the court in the other direction, Sotomayor’s views based on a more varied background are an important antidote to the powerful right wing of the court. And as Tom Goldstein has pointed out, her opinions on the court of appeals hardly suggest any activism on her part when it comes to race-related claims.

But what her lengthy and detailed responses to the Senate highlight is how minuscule and irrelevant these decades-old expressions of Sotomayor’s personal sentiments really are in the context of her long and illustrious career. While sure to provide continued fodder for talk-show hosts, focusing on these claims and calling them evidence of racism is ultimately a doomed strategy for attacking an obviously qualified candidate. Trying to smear Sotomayor with writings from her student days makes little more sense than did trying to smear President Obama with things former Weatherman Bill Ayers did when Obama was a child.

It’s worth noting, too, that there is one thing that’s not asked in the questionnaire but is actually relevant to her qualifications for the Supreme Court, and which I dug up from her 1997 confirmation hearing. While some conservative pundits have misleadingly batted around her reversal rate by the Supreme Court (about 60 percent, which is typical and even slightly lower than most), far more relevant is her reversal rate as a district court judge, where she alone was deciding a case and the appellate court, unlike the Supreme Court, was required to hear all appeals. That’s where you really see whether a judge’s decisions were correct — or at least, within the mainstream of legal interpretation.

Turns out, in district court cases, Sotomayor’s reversal rate is extraordinarily low:  of 442 rulings, Judge Sotomayor was reversed only six times by a court of appeals. That’s a reversal rate of less than 1.4 percent.

I doubt her critics will be mentioning that.

Thurgood Marshall Courthouse (Flickr Creative Commons License)

The U.S. Court of Appeals for the Second Circuit on Tuesday had an opportunity to consider a question that may become more pressing in coming years: Should the U.S. government have to pay damages to a innocent man arrested and secretly sent overseas where he faced certain torture?

That’s the issue at the heart of Arar v. Ashcroft, the case heard by 12 judges in an overflowing courtroom in New York. Over the course of an en banc argument that lasted more than two and half hours, the judges peppered lawyers on both sides with questions on arcane matters of immigration procedure and on the central moral issue of whether a victim of torture overseas at the behest of the U.S. government can seek a remedy from the government.

Illustration by: Matt Mahurin

As I’ve written before, Maher Arar, a 34-year-old Syrian-born Canadian, was arrested on his way home to Canada after a vacation visiting relatives in Tunisia in 2002. While changing planes at JFK airport, he was picked up by FBI agents and taken into custody, denied access to his lawyer and then secretly sent to Syria to be questioned about his alleged ties to Al Qaeda. In Syria, Arar said he was held in a grave-like cell and severely tortured until he confessed to weapons training in Afghanistan, where he’d never been.

Arar was released in 2003 after Syrian authorities said they found no evidence that he’d done anything wrong. A Canadian investigation reached the same conclusion and issued a formal apology and reparations.

Yesterday’s argument centered on whether Arar, assuming that all his claims are true, has any recourse against the U.S. government. The answer could affect many more victims of alleged government abuse in the “war on terror.” (Another case, that of four British men who claim they were illegally detained and tortured at the Guantanamo Bay prison, is the subject of a petition to the U.S. Supreme Court.)

Georgetown University law professor David Cole, on behalf of the Center for Constitutional Rights, which is representing Arar, argued that Arar has a right to sue the government for monetary damages because he was refused access to U.S. courts when he was first detained and because U.S. officials conspired to send him to Syria where torture is an often-used interrogation technique.

As Cole told the judges: “I don’t see any reasonable argument that a federal official can torture somebody or outsource that torture to somebody else.”

But that wasn’t really the concern of the government, according to Deputy Assistant Atty. Gen. Jonathan Cohn, who is representing former Atty. Gen. John Ashcroft and other federal officials and agencies. He argued that even if torture is immoral and illegal, that doesn’t give Arar the right to sue the government or any federal official for being tortured.

“This is about separation of powers,” contended Cohn, insisting that there is no precedent for allowing a non-citizen deported by the immigration service to sue the United States for damages. That he was deported in secret, was not intending to immigrate to the United States and was intentionally sent to a country where he would likely be tortured should make no difference, Cohn told the appeals court.

That argument seemed to outrage Judge Guido Calabresi. He said that if he were changing planes in France and was picked up by the French authorities and whisked away to Syria where he faced the likelihood of being tortured for some alleged crime, he sure would hope the U.S. would have a problem with it. “You might have a very strong interest in creating an action in this country to prevent other countries from doing that,” he told Cohn.

Cohn’s other main argument was that the Arar case is too intertwined with national security and foreign policy, the prerogatives of the president, for the appeals court to get involved.

That didn’t sit well with Judge Barrington Parker, among others. “We look at matters that raise national security and foreign policy issues all the time,” he said, noting that the court frequently reviews petitions for political asylum and petitions for relief under the U.N. Convention Against Torture, which is supposed to prevent deportation to a country where someone has a reasonable belief they will be tortured. In such cases, “We’re always making comments in the international arena about international affairs.”

Some of the judges seemed more sympathetic to Cohn’s arguments. Judge Dennis Jacobs frequently tried to shush his colleagues so the government’s lawyer could make his argument, and Judge Jose Cabranes worried that allowing Arar to sue the government would open the door to thousands of other disgruntled immigrants who each year believe they were wrongly deported.

But several judges noted that the State Department has repeatedly assured the U.N.’s Committee Against Torture, in writing, that victims of torture at the hands of U.S. officials have cause to take civil action against the United States. They asked how Cohn could now suggest that the victims don’t.

In response, Cohn tried to distinguish between federal officials who send detainees to countries knowing they faced torture there from those who actually do the torturing themselves.

After allowing Cole a brief rebuttal, the court asked the government to produce more information — specifically, an unredacted copy of a report by the Inspector General for the Department of Homeland Security about the Arar incident.

While the Second Circuit court could rule on Arar’s case at any time, it’s likely to wait at least a few months. After all, the Obama administration could take a different position in the case — prompting a new 12-judge, multihour argument all over again.

As I reported earlier, the 34-year-old computer consultant of Syrian descent was apprehended by U.S. authorities in 2002 while he was changing planes at New York’s John F. Kennedy International Airport, on his way home to Canada after visiting relatives in Tunisia.

After a harsh interrogation without access to counsel in New York, he was flown to Syria against his will, where he was kept in a tiny underground prison cell and tortured until he eventually “confessed” to training for terrorism in Afghanistan; in fact, he’d never even been there.

For those with a strong stomach, here’s the federal district court’s description of Arar’s early days in Syrian detention, which he claims was coordinated with US authorities:

During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him
on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a
spine-breaking [*11] “chair,” hung upside down in a “tire” for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan
and had never been involved in terrorist activity.

Arar was eventually deemed innocent and returned home to Canada in 2003, where the Canadian government confirmed that he’d done nothing wrong and apologized for its role in his arrest.

With the help of the Center for Constitutional Rights and Georgetown law professor David Cole, in 2004 Arar sued American officials in a U.S. federal court for sending him to Syria to be tortured.  But his case was dismissed on the grounds that an investigation might reveal state secrets and harm national security.  The court also ruled that, as a foreigner deported by immigration authorities, he had no right to challenge his treatment by the United States.

Although a three-judge panel of the Second Circuit affirmed the district court’s ruling, holding that Arar has no right to sue federal officials no matter what was done to him, the full court  of appeals in August made the highly unusual decision to re-hear the case.  All 12 active judges of the court are scheduled to hear the arguments from both sides at 3 p.m. in New York.  The argument will stream live on C-Span.org.

For more on the Arar case and the US government’s program of extraordinary rendition, check out Jane Mayer’s excellent piece on the subject in the New Yorker.