Bad Week for Civil Liberties: Obama Administration Collecting Verizon Users' Call Data

Civil libertarian and Guardian journalist Glenn Greenwald published a bombshell this morning. Since April 2013, the US government has been collecting information from Verizon regarding all of its customers calls that were made within, from or to the United States.

The FISA Court approved the government's request and ordered Verizon to turn over the data. Although FISA Court orders are confidential, an anonymous person gave a copy of the Verizon order to Greenwald. 

While the government does not have access to the content of the calls, the court order allows it to demand the phone numbers involved in the calls, the time and duration of the calls, the locations of the callers, and other technical information. Furthermore, the order applies to any calls placed in the US, even if they are strictly local and to international calls made to or from the US. The order also governs any calls, regardless of whether the government has a reasonable basis for believing that either of the callers has committed or is conspiring to commit a crime. For reasons stated below, this order violates the Constitution.

This news follows a Supreme Court ruling, made earlier this week, that also curtails civil liberties. On Monday, the Supreme Court held that the collection of DNA from a person arrested for committing a serious crime does not violate the Constitution. The Court "reasoned" that the collection of DNA is not physically intrusive, because it only involves swabbing the inside of an arrestee's cheek. The Court held that the need to "identify" persons in police custody provides a sufficient justification to collect DNA upon arrest.

The opinion sharply divided the Court. Justice Scalia wrote a powerful dissent. Justice Kennedy, predictably, wrote the majority opinion, which the sometimes-liberal Justice Breyer joined. Some "liberal" constitutionalists, such as Akhil Amar and Neil Katyal, have attempted to justify the Court's decision as a reasonable interpretation of the Fourth Amendment. Others, such as Barry Friedman, contend that the opinion is misguided. I agree with Friedman.

The news regarding the surveillance of Verizon calls helps to explain why the DNA ruling is utterly bankrupt. The Court defended its ruling on the grounds that collecting DNA is not physically intrusive; it only involves a quick swab of the cheek.

But collecting telephone records -- or even listening to calls -- does not intrude upon the object's physical space. In fact, these practices are even less intrusive. Undoubtedly, most Verizon describers did not realize that the government had been collecting details about their calls until today (assuming they even read about current events).

By contrast, the arrestee clearly knows that the government has intruded his or her physical space, albeit minimally, during DNA collection. So, using the Court's logic, the minimal physical intrusion of telephone surveillance could go towards justifying these searches in the absence of a warrant or a reason to believe the callers are actual or potential criminals.

The Court's focus on the physicality of DNA collection diminishes the scope of the Fourth Amendment. The Fourth Amendment does more than guard against bodily intrusion. It also secures the privacy of our "houses, papers, and effects."

I cannot imagine a legal justification for a blanket search of every Verizon call made in, from, or to the United States. Similarly, it is difficult to think of a valid reason to collect a DNA sample from every person arrested (not convicted) for a serious crime. It certainly cannot justify the subsequent use of this DNA in cases unrelated to the arrest. Yet, the Court validated this practice earlier this week.

DNA, like phone calls, contains an abundance of private information about us. The government cannot intrude upon this zone of privacy without reasonable justification. No legitimate reason exists to justify the generalized collection of DNA from arrestees. This same logic applies to the generalized collection of telephone data from every Verizon customer (excluding only calls made between two foreign locations). These practices make a mockery of the Fourth Amendment. For this reason, they are both unconstitutional.

Note: The Obama Administration has rushed to defend its collection of Verizon call data. The White House, sounding eerily similar to President Bush, says that monitoring the telephone data is "a critical tool in protecting the nation from terrorist threats." Apparently, we are all potentially terrorists. Al Gore, by contrast, described the practice as "obscenely outrageous."

Republicans Use Race-Based Affirmative Action to Attract Latino Candidates

Race-based affirmative action is a four-letter word for most conservatives. In fact, most conservatives would probably consider modifying the phrase "affirmative action" with the qualifier "race-based" redundant. Typically, conservatives only target race-conscious affirmative action plans, even though this practice often involves many categories, including sex/gender, poverty, and (increasingly) sexual orientation.

Even though affirmative action is an anathema to contemporary conservative ideology, the GOP has openly embraced this instrument in order to diversify its ranks. Returns from the 2012 election showed that the vast majority of persons of color voted for Democratic candidates. Also, projected demographic patterns predict a substantial increase in the voting power of persons of color. This is especially true in some important Republican states, such as North Carolina, Virginia, Texas, Arizona, and Florida. The growth in Latino voters in those states could make it impossible for Republicans to win national office unless significant numbers of these voters are attracted to GOP candidates.

In response to this reality, Republican leadership has decided to target Latino voters -- apparently deciding that they have no chance of capturing significant numbers of black voters and that the number of Asian-American voters is too small to concern them. Since the election, Republican leaders have made repeated calls for the party to "reach out" to Latinos. Now, they have put money behind this effort.

Today, the GOP announced a national plan to recruit Latino political candidates to the GOP. The Future Majority Project announced that it would spend $6 million to attract Latinos. The Republican State Leadership Committee, which works to increase the number of Republicans holding state political office, operates The Future Majority Project. The project has used similar efforts in the past to recruit women (and even Latino) candidates).

It is difficult to distinguish this initiative from affirmative action. Like affirmative action, this initiative will give Latinos special resources to increase their numbers in state political office. Similarly, schools offer scholarships or special admissions consideration to qualified applicants of color in order to achieve academic diversity. Employers offer jobs or special consideration to qualified persons of color in order to ensure workplace diversity.

The Supreme Court has held that affirmative action is legal to achieve diversity in higher education. Conservatives, however, loathe any consideration of race by state and private parties. This initiative is certainly protected as political speech. Liberal commentators have similarly argued that affirmative action at universities should be analyzed under the Right of Association, which is shielded by the First Amendment (just like political speech). Nonetheless, conservatives remain generally opposed to affirmative action -- unless it is necessary to achieve political victories for the Republican Party.

Read more here: http://miamiherald.typepad.com/nakedpolitics/2013/05/gop-to-hispanics-we-want-you-to-seek-state-level-office.html?utm_source=twitterfeed&utm_medium=facebook#storylink=cpy

KAITLYN HUNT: Case Raises Questions of Sexuality AND Sexual Orientation

The Kaitlyn Hunt case demonstrates, once again, the tendency of people to reduce complex problems into singular concerns. Hunt, an 18-year-old Florida high school student, was recently charged with felony sexual battery for having sex with a 14-year-old teen who attends the same school.

Two competing narratives regarding the case have developed in media accounts. A liberal narrative depicts the decision to prosecute Hunt as an act of homophobia. A conservative side has recently emerged which contends that the case has nothing to do with sexual orientation.  Instead, the case concerns the regulation of sexuality; Hunt is being prosecuted simply because she violated a gender-neutral Florida statute. This "either/or" analysis, however, obscures the many factors that influence cases like this.

Regulation of Sexual Conduct Among Youths
Although much of the media discussion of the Hunt cases focuses on questions of homophobia and sexual orientation, this case, at a minimum, is indisputably about sexuality. Florida does not allow persons to consent legally to sexual conduct until he or she reaches the age of 18. The law does not contain any gender or sex classifications. Thus, it applies to heterosexuals, gays, lesbians and bisexuals. Accordingly, it is easy to identify sexuality as a factor in Hunt's prosecution.

Sexual conduct among youths is a delicate topic. Many people believe that young persons -- especially girls -- lack the maturity to consent to sexual conduct. In fact, statutory rape laws in many states used to protect female "victims" exclusively. In these states, young males who had sex were effectively viewed as consenting individuals from the standpoint of the law. In 1980, the Supreme Court upheld a California statute of this kind. Those statutes have largely been repealed, and the modern trend criminalizes sexual conduct with minors regardless of gender. 

Rigid application of statutory rape laws have received a tremendous amount of criticism. Historically, critics rightfully argued that statutory rape laws failed to recognize that teenagers commonly have sex with one another and that this conduct is not nearly as problematic as sex between adults and children. Thus, while states can legitimately ban sexual conduct between adults and children, when the two participants are very close in age, these laws can lead to questionable or unfair results.

In response to these arguments, many states have implemented "Romeo and Juliet" exclusions (which is literally heterosexist terminology) to reduce the harshness of statutory rape laws. In many states, consensual sexual conduct among individuals who are close in age, e.g., four years apart, is not considered rape or sexual assault. This is a departure from traditional practice. Florida, however, does not have such an exception. Instead, the state simply allows persons convicted in close-in-age situations to petition a judge to remove the "sex offender" registration requirement, which, if not done, would haunt the young defendant for his or her entire life.

The Hunt case implicates the historical critiques regarding the regulation of sexual conduct among youth. Hunt and her "victim" are both teenagers at the same school. According to media accounts, Hunt said that she loved the victim during a telephone conversation that police recorded. The victim's parents said that their daughter ran away from home to be with Hunt after they demanded that the relationship end. That the victim went to Hunt's house after her parents expressed their displeasure with her relationship with Hunt demonstrates the intimacy of the girls' relationship. In real (even if not legal) terms, the relationship between the two girls was consensual.

In many states, the law would not criminalize this conduct. Florida is not one of those states. The condemnation of Hunt's prosecution reveals that a large part of the public is uncomfortable treating sexual conduct among teenagers as criminal conduct -- certainly as a serious felony. The decision to prosecute Hunt does not take into account the reality of teen sexuality and the harsh collateral consequences that result from labeling teenagers as felons and sex offenders. At least one Florida lawmaker agrees. State Senator Thad Altman (Republican) believes the state should decriminalize consensual sexual conduct among teenagers. Amending the statutory rape law, however, would likely face stiff resistance from conservatives.

Sexual Orientation
Conservatives have recently sought to rebut the argument that sexual orientation is relevant in Hunt's case. The face of the statute does not implicate sexual orientation because it applies to all sexual conduct regardless of the participants' gender. Nevertheless, this does not preclude the possibility that homophobia shaped the decision to prosecute Hunt.

Criminal statutes do not mandate prosecution. Instead, prosecutors have the discretion to bring charges (see below). In many instances, punishable acts of sexual conduct among teenagers are never reported or pursued as criminal cases because either the parents or the participants do not want a criminal case.

Some parents approve of or acquiesce to the reality of teen sexual conduct. Some victims have effectively blocked prosecutions by refusing to testify. Prosecutors can choose to forego charges in cases of uncooperative victims or parents. They can also exercise their independent judgment and decide not to prosecute.

Consequently, when these cases proceed, they often do so based on the parents' wishes. In other words, even if a person has committed statutory rape, the parents (and victims) can influence the decision whether to prosecute. For this reason and due to the prosecutor's general discretion, homophobia could have led to the decision to prosecute Hunt, regardless of the neutrality of the Florida statute.

Many commentators claim that the victim's parents are homophobic. They have denied this assertion. Although it is difficult to read the minds of the victim's parents or the prosecutor, it is not unreasonable to argue that homophobia influenced this case. First, juvenile sex prosecutions have always raised questions of discrimination. For instance, several "black male defendant" and "white female victim" close-in-age prosecutions have generated intense public scrutiny.

In 2003, Georgia prosecuted Marcus Dixon, 18, for having sex with a 16-year-old white teenager who attended high school with him. Dixon, a black male, was a model student with a 3.96 GPA and a scholarship to Vanderbilt University. The state charged Dixon with numerous crimes, including forcible rape, statutory rape, aggravated child molestation, assault, and false imprisonment. Dixon was convicted of aggravated child molestation and statutory rape. He received a mandatory 10-year-sentence for aggravated child molestation.

Under Georgia law, statutory rape charge is a misdemeanor when the participants are close in age. But the prosecutor added on the aggravated child molestation charge, which carried a much harsher mandatory sentence.  Critics argued that the prosecutor and the victim's parents were motivated by race. Ultimately, the state supreme court dismissed the aggravated child molestation charge as inappropriately filed; today, Dixon is a professional football player.

In the past, Georgia law explicitly banned sexual conduct between blacks and whites. Today, it does not. But old habits die hard. If race can influence prosecutorial decisions in these cases, it is reasonable to believe that sexual orientation can do so as well.

And Florida is hardly progressive with respect to sexual orientation. In 2008, Florida voters amended the state constitution to ban same-sex marriage. The measure passed with the support of 62% of voters. Thus, on the question of marriage equality, the state constitution explicitly mandates antigay discrimination.

In 1977, Florida banned adoption by gay or lesbian persons. The state vigorously defended this law in state and federal court less than a decade ago.  In 2008, a state appeals court invalidated the statute. After this ruling, the state relented and refused to enforce the statute or pursue further judicial review.

Florida does not have any statewide law that prohibits sexual orientation discrimination. And while recent polls demonstrate wide voter support for such a law, for the last six years, conservatives have declined to give this such a proposal a hearing or workshop in the legislature.

Given this recent history, the notion that a Florida public official or a family could push for prosecution of an alleged crime due to homophobic intent is not far-fetched. While it is unclear what has actually motivated the parents or the prosecutor, it is not unreasonable to consider homophobia as a possible factor. Even Bruce Colton, the prosecutor on the case, has conceded the opposition to homosexuality could have motivated the victim's parents. Colton, however, denies that he is acting upon the victim's parent's desires, which seems implausible.

Prosecutorial Discretion
As stated above, prosecutors have the discretion to bring charges against a person who has allegedly engaged in criminal conduct. Statutes do not mandate prosecution, and the Supreme Court has treated prosecutorial discretion as an extremely important authority of states and the federal government.

Despite having the power to decline to bring criminal charges, Florida has decided to prosecute Hunt for felony sexual battery. Given the closeness in age of the victims and the possible homophobic motivation of the victim's parents, many people have contested the prosecution. Colton portrays the matter in very simplistic terms: the defendant violated the statute; actual consent is irrelevant; that they attend the same high school does not matter. But this reductionist position overlooks the important issues of sexuality, sexual orientation and fairness that this case implicates.

Conclusion
There are at least three important issues raised by the prosecution of Kaitlyn Hunt. These issues include the regulation of sexual conduct among youths, sexual orientation, and prosecutorial discretion. Hopefully public debate regarding the prosecution of Hunt will become more comprehensive as the case progresses.

David Sirota Unfairly Attacks SEC Chair Nominee Mary Jo White (and Me)

President Obama recently nominated Mary Jo White to serve as the next Chair of the Securities and Exchange Commission. As Chair, White would oversee the entity that is responsible for protecting the investing public from unscrupulous and criminal behavior among investment companies, banks and corporations.

White is a well respected attorney.  She was the United States Attorney for the Southern District of New York (one of the most prestigious prosecutorial offices in the nation) from 1993 to 2002.  White earned a reputation as a tough but fair prosecutor. Her most famous cases include the successful prosecution of terrorists who bombed the World Trade Center in 1993. 

Despite her outstanding reputation as an attorney, White has received early criticism from some progressives who think she would do a terrible job as the SEC Chair. White's critics contend that because she has worked as a white-collar criminal defense attorney, including serving as counsel for large banking clients, she would not strongly enforce securities regulations. Instead, her critics argue that she will protect financial institutions to the detriment of the investing public.

David Sirota: Mary Jo White Is A "Wall Street Enabler"

Progressive blogger David Sirota wrote a forceful critique of White's nomination for Salon. Sirota's article bears the title "Wall Street's New Enabler." From the start, Sirota makes it clear that he is angry with the nomination. Sirota makes the case against White primarily by focusing on her life after she left her position as a federal prosecutor. The fact that White worked as a defense lawyer for banking institutions and defended those clients against actual and potential criminal investigations presumably makes her unfit to chair the SEC.

By his own admission, Sirota was only vaguely familiar with White when he first heard of the nomination.  Nonetheless, with the help of Google, Sirota remembered why she was a poor choice:

Her name should ring a bell, or really, sound a frightening alarm. I knew I had heard of her before, and not in a good way. So I fired up Google this morning and sure enough, I discovered why my superficially good feeling was quickly turning into a deeply ominous nausea. I suddenly remembered that this is the same Mary Jo White who has built the latter part of her career leveraging her position in governmental law enforcement positions to land lucrative private-sector jobs defending Wall Streeters. In moving through that revolving door, she has been a part of a corrupt culture that has weakened the power of the very law enforcement agency President Obama is now nominating her to run (italics added).

These are very strong words -- especially given Sirota's admitted lack of familiarity with White. Based on a simple Google search, Sirota now firmly believes that White is enmeshed in an unspecified but very dangerous culture of corporate corruption.

Sirota also relies upon Rolling Stone reporter Matt Taibbi to support his condemnation of White. Taibbi has criticized the banking industry in written articles and during media appearances. He has also argued that the Obama administration is in-bed with the financial sector, due, in part, to a revolving door of employees between government and private firms. 

In an article titled, "Why Wall Street Isn't in Jail," Taibbi discusses a 2010 conference attended by private and governmental sector employees. Gary Aguirre, a former SEC investigator and whistleblower, attended the conference and provided details to Taibbi.

Mary Jo White, who was now a partner at Debevoise and Plimpton, a prestigious international law firm with many financial sector clients, also attended the conference. At some point during the conference, White provided an introduction for Preet Bahara, then the United States Attorney for the Southern District of New York (White's former position). As a New York City federal prosecutor, Bahara would have jurisdiction over securities-related crimes committed by Wall Street firms.

When Bahara rose to speak, he responded cordially and directed some comments to White: "I want to first say how pleased I am to be here. . . .You've (White) spawned all of us. It's almost 11 years ago to the day that Mary Jo White called me and asked me if I would become an assistant U.S. attorney. So thank you, Dr. Frankenstein." According to Taibbi, this exchange demonstrates the "chumminess and mutual admiration" among the regulators and the regulated.  Sirota agrees with this assessment and concludes that White is too close to Wall Street to protect investors.

Having attended dozens of typically boring legal professional conferences, the banter Taibbi describes as damning sounds more like the amateur comedic one-liners that gray-haired attorneys inexplicably deliver as the opening salvo to dry dissertations. These folks are not late-night comedy material.

Sirota relies on Taibbi's article for another presumably damning story regarding White. Aguirre (the SEC whistleblower) says he received heat and was subsequently fired because he wanted to investigate former Morgan Stanley CEO John Mack for insider trading. According to Aguirre, White talked with the chief investigator for the SEC, who instructed him to discontinue the investigation. Although both Taibbi and Sirota portray this as an example of corruption, it is unclear what, if anything, White did to influence the discharge of Aguirre and the refusal to investigate Mack.

While Taibbi says that Aguirre only wanted to "interview" Mack, every lawyer knows that investigative interviews are not simple chats. They are made in connection with potential prosecution.  Conducting such an investigation with a heavily lawyered target would constitute a waste of resource, unless the government has a clear basis to believe that wrongdoing has occurred. Regardless of what actually transpired, Sirota's portrayal of White as a corrupt lawyer does not rest on any full knowledge he has regarding this situation.

I worked as an attorney in New York City during the early part of White's career as a prosecutor.  Based on my knowledge of her and the assessment of other lawyers, I believe that she would make a good SEC Chair. I express this opinion, however, hoping to find out more information about White's ties to Wall Street, whether these connections would prevent her from performing her obligations as chair, and the ways she would use her position to root out illegal banking practices and to protect the investing public.

As a progressive, I believe that White deserves the dignity of open discourse. Progressives should not reach rash decisions, based on vague memories, quick Google searches, and information supplied by one journalistic source. The Left often criticizes the Right for behaving in this fashion.  Factless arguments are just as disturbing when they come from the Left.  

Sirota Unfairly Attacked Me

I posted a 2-paragraph response to Sirota on his Facebook page and a few short responses on Twitter. Although these messages are not as detailed as this blog post, they basically convey the same points: that Sirota has rushed to judgment and is especially wrong to raise White's defense work as a strike against her. Sirota went ballistic, responding with an onslaught of angry, desperate Tweets.

Sirota described my posts as a "slanderous lie"; a "deliberate malicious lie"; he urged me to "get a life -- and some legal training." I informed him that I was a law professor (who, by the way, graduated from Yale Law School 19 years ago). He said I am "willfully ignorant."  Finally, in two separate posts, Sirota said "fuck you." Since that time he has deleted the "fuck you" posts. Sirota's charged responses cannot cover his empty analysis.  Note: A screen capture of Sirota's posts appears below this post; my Twitter page can be found at this link.

Romney's Worst Hypocrisy: Today, He Derides the "Entitlement" Society, But He Implemented "Romneycare"

Mitt Romney's secretly recorded comments that negatively describe supporters of President Obama have generated much criticism. Many of the critics have uncovered the inaccuracies in Romney's comments. Many of these critics, however, have overlooked one of the most pernicious elements of his comments. Although Romney bashes Obama's supporters as people who see themselves as "victims" and who crave reliance on government programs, he is actively seeking the support of seniors by promising them that he will strengthen Medicare - one of the world's largest public benefits programs.

But the most hypocritical issue related of his comments concerns their conflict with his legacy as governor of Massachusetts. While Romney bashes some Americans as relying on public support, when he was governor of Massachusetts, he presided over that state's implementation of universal healthcare. That program is almost identical to the Affordable Care Act, which conservatives deride as "Obamacare."

Until now, Romney has made a weak attempt to distinguish Romneycare from Obamacare on the grounds of federalism. His plan reflected the special interests and needs of persons within the state of Massachusetts, while Obamacare seeks to impose a uniform remedy across the nation.

Holding aside the inaccuracies in this argument, Romney should now try explain why the voters of Massachusetts who wanted universal healthcare were not "victims" and leeches of public assistance. Simply saying they were state voters does not answer the questions Romney raises in his comments. If people who desire public healthcare benefits are simply the product of an entitlement society, then Romney absolutely catered to these same interests while he was the governor of Massachusetts. Today, however, he is singing to another tune. His voice is off-key.

Romney's Comments Regarding Obama's Voters: Inaccurate, Insulting, and Hypocritical

Mitt Romney's recent comments regarding President Obama's voters have created quite a media stir. During a private donor reception in Boca Raton, Florida in May 2012, Romney made the following, secretly recorded, statement:

There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. That that's an entitlement. And the government should give it to them. And they will vote for this president no matter what…These are people who pay no income tax.

Romney's comments are inaccurate, insulting, hypocritical.

Romney's Comments Are Inaccurate
Many factcheckers have already tackled this issue. Ezra Klein, for example, has meticulously uncovered the inaccuracies in Romney's comments. The notion that 47 percent of Americans do not pay taxes is simply wrong. Nearly 50 percent of Americans do not pay income taxes, but most of these indiviudals pay payroll taxes, which fund, among other things, Social Security and Medicare. The tiny percent of individuals who do not pay any payroll or income taxes are elderly, students or extremely poor. Thus, contrary to Romney's assertion, the "47 percent" pay taxes, work, and do their best to provide for their families.

Romney's Comments Are Insulting
Romney suggests that people who do not pay taxes suffer from a victim mentality and prefer to leech governmental resources. This idea is strange coming from an individual who was born with a diamond spoon in his mouth. Romney has never had to struggle for basic human needs. And he has smartly sheltered his billions of dollars in assets from taxation. Yet, he has the audacity to malign the character of working-class and poor Americans. This is shameful.

Romney's Comments Are Hypocritical
Romney's comments wreak of hypocrisy. While he bashes people who he believes feel they are entitled to governmental resources, including health care, he and his running-mate Paul Ryan have paraded around the country telling seniors that they will protect and improve Medicare. But seniors are the very class of individuals who, taken together, are least likely to pay any federal taxes and who are most likely to depend upon the federal government for healthcare.  Furthermore, given the high rates of poverty in states that tend to vote for Republican presidential candidates, Romney's comments likely apply to a large portion of the Republican base that he hopes will give him an election victory.

Final Thoughts
Unlike most campaign commentary, I take these comments personally. First, I am voting for President Obama. But more importantly, I grew up in a poor family, but I am now a Yale-educated law professor. My success required hard work and a lot of personal and family sacrifices. Unlike Romney, my family ties did not give me any societal advantages whatsoever.

Despite my individual effort, I also relied upon governmental assistance, particularly student financial aid and a public education, to become the person I am today. Of course the entire Republican National Convention was based on the falsehood that governmental assistance is unnecessary for economic success.

Romney's comments have no place in a country that prides itself on offering equal opportunities. Romney's comments make him unfit him for the office of President of the United States.

Gun Control and the Limited Liberal Imagination

The awful shooting in Aurora, Colorado has generated a predictable conversation regarding gun control. News articles, blog pages, and social media are buzzing about the perils of the US gun culture and the need for more gun control laws. As a Dissenting Justice, I like to examine critical issues that others push to the margins. Accordingly, I have attempted to shake up the liberal response to gun violence which focuses almost exclusively and mechanically on gun control. For several reasons, I find this conversation extremely limited and insufficient. 

First, there is a poverty of good research that documents the effectiveness of gun control. Many studies are inconclusive. Some show that such measures work, while others show failure. Many of these studies use poor methodologies. Despite the limited availability of strong research on this issue, gun control has been the singular response by many US liberals to gun violence. It is possible to question the effectiveness of gun control without conceding to the political agenda of rightwing organizations such as the NRA. Progressives should rest their arguments on sound data, just as they demand conservatives to do.

Second, it is abundantly clear that homicides -- whether they involve guns or not -- tend to involve these factors: mental illness, drug abuse, and emotional conflict. Indeed, in 2004 the CDC conducted a comprehensive study of gun deaths and reached this very conclusion. Despite the abundance of research that links violence with mental illness, drugs, and emotional conflict, the liberal dialogue that has emerged since yesterday's tragedy (and following similar events in the past) does not address mental illness and drug addiction. Instead, the dialogue has focused primarily on regulating gun purchases.  This response echoes the conservative approach to crime generally. It calls upon the criminal law alone to solve a complex social problem. Even if gun control works, only a multidimensional and comprehensive approach can reduce violence.

Third, I am very suspicious of heated policy discussions that follow extraordinary events because they are inevitably faddish. Although the Aurora shooting was extremely tragic and bloody, gun violence occurs daily in the US. In Chicago, for example, there have been 253 homicides this year alone, but this has not captured the national attention like the Aurora shootings. As in most large cities, most of the Chicago homicide victims are male and black. Indeed, homicide is the leading cause of death among young black men. The issues leading to this acute social problem include poverty, racial isolation, insufficient resources to address mental health, and lack of opportunity. In other words, gun control will not fix this problem.

Fourth, the typical assailant knows the victim which enhances the opportunities for violence, with or without guns. Often, homicides occur among intimate partners. Given the relationship between many victims and killers, it is unclear whether regulating guns would do much to curb routine violence and homicides, even if it could reduce random shootings and mass killings.

Final Thoughts

I do not oppose sensible gun control. I do oppose, however, robotic and predictable policy positions.  Even The Onion has satirized with its usual accuracy the national dialogue that has followed the Aurora massacre. Supporting gun control should not preclude advocacy of other responses to violence. Being a liberal does not require rote adherence to traditional liberal policies. It is fine to rethink longstanding agendas. And even if gun control is part of the solution to violence, it is not the only feasible and efficacious response.

SUPREME COURT UPHOLDS HEALTH CARE LAW: Legal and Political Analysis

The Supreme Court has upheld the Affordable Care Act (affectionately known as Obamacare) in a 5-4 ruling. Although many observers expected Justice Kennedy to provide the swing vote, Justice Roberts joined the liberals to uphold the statute.

In many ways, the opinion is rather mundane. The Court held that the individual mandate is a tax on uninsured people. Although the Obama administration refused to call the mandate a tax while the legislation was pending in Congress, it has defended the ACA on those grounds in litigation. The taxation argument is probably the most sound from a constitutional perspective. But with respect to politics, taxation is a dirty word.

Justice Roberts Saved the Law, But He Is Still A Conservative

Although many people will undoubtedly praise Justice Roberts for saving the integrity of the Court, his opinion definitely leaves a conservative and partisan mark. For example, Justice Roberts unnecessarily reached the question of whether the Commerce Clause allows Congress to penalize uninsured people. Because a majority of the Court found that the the penalty is a valid tax, the Court did not have to reach the Commerce Clause issue. In fact, longstanding judicial principles frown upon the unnecessary discussion of constitutional issues.

Justice Roberts, however, goes deeply into the Commerce Clause question, and his logic embraces much of the conservative discourse surrounding the penalty. Justice Roberts buys into an "action"/"inaction" distinction, arguing that Congress cannot regulate economic inactivity. He also accepts very specious arguments likening the penalty to a mandate to purchase broccoli for the sake of national health. Justice Ginsburg provides a very impressive response to these arguments in a separate opinion, joined by Breyer, Kagan and Sotomayor. [Note: I have also addressed these issues in several essays. In each essay, I defended the law as either a valid tax or a permissible exercise of the Commerce Power. See here, here, and here ]

Justice Roberts also considers whether the penalty is justified by the Necessary and Proper Clause. He concludes that it is not. His logic, however, is rather strained. Roberts concludes that the provision might be "necessary" but that it is not a "proper" exercise of federal power. This is a novel take on the Necessary and Proper Clause. Historically, the Court has interpreted this clause as giving Congress a great deal of flexibility to exercise is enumerated powers. Not only does Congress have the authority to exercise explicit powers delegated to it by the Constitution; it also has the power to do all things that are "necessary and proper" to exercise these explicit powers. In other words, the clause gives Congress implied powers.

In United States v. Comstock, decided just two years ago, the Court issued a quite expansive ruling involving the Necessary and Proper Clause, when it held that Congress could involuntary commit child predators who have completed their federal sentences. The Court ruled that the involuntary commitment provision was a necessary and proper way of enforcing several federal laws related to criminal punishment. The Court, as the dissent observed, failed to link the involuntary commitment provision to any actual explicit power delegated to Congress by the Constitution and criticized the majority for its novel and far-reaching approach. Roberts voted with the majority. Given this precedent, Roberts's discussion of the Necessary and Proper Clause in today's ruling seems heavily flawed.

Ultimately, it is unclear whether the discussion of the Commerce Clause and the Necessary and Proper Clause are even a part of the decision or simply dicta. The caption of the ruling describes these sections as simply "an opinion" rather than "the opinion of the Court"(italics added), which matters from a legal perspective.  Also, the dissenters did not explicitly "join" this part of the ruling. On the other hand, Justice Scalia refers to Ginsburg and the other three liberals as "dissenters" on the Commerce Clause question. It will be interesting to see whether this part of the opinion is treated as "good law" going forward. [Note: The Volkh Conspiracy believes this confusion might indicate that Roberts changed his mind at the last minute. In other words, the liberals were actually the dissenters until they pulled Roberts to their side.]

The Dissent

Justices Scalia, Kennedy, Thomas, and Alito wrote a rare "joint" dissenting opinion. When justices write joint opinions, they are tying to make a very strong statement. Despite the rare format of the opinion, the dissent really does not mark new ground. Instead, the opinion simply argues against the Commerce Clause argument, the taxation argument, and continually expresses the view that Congress now has unbridled power to regulate individuals. One aspect of the dissent, however, requires discussion.

Justice Scalia: Pure Politics

Before today's ruling, Justice Scalia authored a concurring opinion in Gonzales v. Raich. In that case, the Court held that the Commerce Clause allowed Congress to regulate intrastate, homegrown marijuana. Justice Scalia wrote separately and described the Commerce Clause in very expansive terms. According to Justice Scalia, Congress could regulate medical marijuana users because the federal prohibition of marijuana possession was just one small part of a broader regulation of commerce (the Controlled Substances Act) and that it was rationally related to the goals of the broader regulation. He also argued that so long as such a rational basis exists, the regulation need not target economic activity at all.

Today, however, Scalia retreats from this view, joining the other dissenters who embrace the action/inaction distinction. I believe that history will not view this argument kindly. Justice Scalia has always been partisan and rightwing in his rulings -- particularly on issues such as race, gender and sexual orientation. Many Court observers, however, still viewed him (prior to today's ruling) as an intellectual. Recently, he has lost some of his goodwill. Several commentators have recently argued that he has traded his intellectual hat for a more politicized rhetoric. Although I believe these commentators are a bit behind the game in their discovery that Justice Scalia is a political partisan, I suspect that after today's ruling, many others will view him rightfully as an ideologue.

Justice Kennedy: Not A Surprise

Many observers believed that Justice Kennedy would provide the swing vote to save the statute. But Justice Roberts filled that role, and Kennedy joined the conservatives.

Although Justice Kennedy's decision to join the conservative dissenters will probably surprise many political commentators, it should not shock close Court observers. According to empirical research, when Justice Kennedy acts as a tie-breaker, he usually joins the conservatives. Despite his reputation as a moderate, Justice Kennedy is fairly conservative. This is especially true on issues of racial justice and abortion.

Today, Justice Kennedy has again sided with the conservatives. Justice Roberts, however, played the spoiler. Undoubtedly, many folks will argue that Chief Justice Roberts is concerned with the Court's integrity. They believe that if the Court had invalidated the ACA, the public would have reacted negatively to the decision, thus eroding the Court's legitimacy. This argument seems logical. It could explain why Justice Roberts voted with the liberals, but still carefully placed many rightwing arguments in his ruling. The public will only notice the outcome. Policymakers and lawyers will notice the details.

Justice Thomas

Justice Thomas also wrote a brief dissent. But he has merely recycled an argument that he has made before. Justice Thomas has the most conservative views about the Commerce Clause than any justice in the history of the Supreme Court.

All justices on the Court, including Thomas, believe that Congress has the power to regulate commercial transactions or persons or things that are "in." Thomas, however, rejects the view -- though shared by liberals and conservatives today and in the past -- that Congress also has the power to regulate activity that "affects" interstate commerce. Justice Thomas does not believe that the affecting-commerce rationale is legitimate. He took two simple pages to reiterate that belief in today's ruling. No other justice joined -- or has ever joined -- him on this point.

Politics

Now, political commentators will slice and dice the implications of the ruling. I suspect that they will only give the legal nuances light attention, if any at all.

In the lead-up today's ruling, Mitt Romney has taken many swipes at President Obama regarding the case. Romney said that if the Court invalidates the statute, then Obama's entire first term will have been "wasted." He also said that advocating for the law was a "moral failure" by Obama. These comments mask the fact that as governor of Massachusetts, Romney presided over almost identical legislative reforms in the state.

It will be interesting to see how Romney responds to today's ruling. The ruling is undoubtedly a huge blow to Republican rhetoric regarding the lawlessness of the Obama administration.

Meanwhile, President Obama is probably breathing more easily and preparing to respond to today's developments. Stay tuned: more analysis to follow!

Note: This article was edited to reflect that the dissent was written jointly, not by Justice Scalia alone.

Virtually Unreported: Democrats Gain Control of Wisconsin Senate

While the media has obsessed over Wisconsin Governor Scott Walker's successful victory in Tuesday's recall election, only a few sources have reported that the Democrats gained control of the Wisconsin senate. The Washington Times, a very conservative newspaper, was among the first media to cover this story (L.A. Times also now covering it).

Although Walker survived the recall effort, Democrat John Lehman defeated incumbent Republican Senator Van Wanggaard. The successful recall of Wanggard gives Democrats a slim majority in the state senate.

This was the third successful recall effort by Wisconsin Democrats over incumbent Republicans since 2010. Three Republicans, however, retained their seats on Tuesday.

The Media's "Interesting" Coverage of the Wisconsin Recall Election (Updated)

Some media have offered rather interesting coverage of the recent Wisconsin gubernatorial recall election. Every poll conducted ahead of the election showed that Governor Scott Walker would comfortably defeat his opponent Tommy Barrett, the mayor of Milwaukee. But once the polls closed, the media immediately announced that the race was too close to call. This surprising news drew in many viewers who wanted to see how this unexpected drama would unfold. But there really was no drama at all.

Faulty Exit Poll Reporting

The media failed to disclose that it initially reported a virtual tie based on preliminary exit poll data that did not take into account results from all precincts. Furthermore, the firm that conducted the exit polls did not sample absentee voters, who favored Walker.

Later that night the media updated the information it provided the public and then very quickly called the race for Walker. This move left many folks confused. It also probably aroused the suspicions of individuals who distrust everything related to the media or to opinion polls.

The Manufactured Link Between Walker, Obama, and Romney

The next line of reporting turned to November. Although President Obama remained completely silent about this election (except for a last-minute tweet endorsing Barrett), many pundits argued that the outcome signaled that Mitt Romney has a chance to win this traditionally blue state.  These pundits, however, overlook many factors.

First, the exit polls show that voters favored Obama over Romney 51-44%.  Furthermore, 18% of persons who voted for Walker said they would vote for Obama.

In addition, the exit polls also reveal that many voters simply oppose recall elections. 60% of voters said that recall elections should only occur when the incumbent has engaged in "official misconduct."  Walker overwhelmingly won this group.

Despite the effort by some commentators to portray Wisconsin as "in play" for Republicans, the results of the recall election are essentially the same as those in the last two rounds of state elections. The Democrat won groups like women and union members; the Republican won whites and conservatives. The National Journal has an excellent analysis of the election returns.

Finally, it is not odd for voters in a state to elect a governor of one party, but favor a presidential candidate from another party. Indeed, Walker won in 2010 despite Wisconsin voters favoring Obama over Senator John McCain.  Similarly, Walker survived the recall election, despite voters indicating that they would support Obama in November. According to Nate Silver, in the last 10 presidential elections, candidates have actually performed better in states with governors who are members of the opposing political party.

Virtually Unreported: Democrats Gain Control of Wisconsin Senate

Finally, while the media has obsessed over Walker's victory, only few sources have reported that the Democrats regained control of the Wisconsin senate Tuesday night. The Washington Times, a very conservative newspaper, was among the first (and few) media to cover this story (L.A. Times also now covering it).

Although Walker survived the recall attempt, Democrat John Lehman defeated incumbent Republican Senator Van Wanggaard. The successful recall of Wanggard gives the Democrats a slim majority in the state senate. This was the third successful recall effort by Wisconsin Democrats over incumbent Republicans since 2010. Three Republicans, however, retained their seats on Tuesday.

Update: Professor Michael P. McDonald, a Government and Politics scholar at George Mason University, cogently explains why the recall election has no bearing on November. 

BREAKING NEWS IN TRAYVON MARTIN STORY: Court Has Revoked George Zimmerman's Bond (UPDATED)

In a very dramatic development, a Florida court just has just revoked George Zimmerman's bond. The development took place during a hearing that focused primarily on media requests for evidence in the case. Both the state and the defense want certain evidence sealed from public disclosure.

The prosecution, however, also presented a motion to revoke Zimmerman's bond. Jeff Weiner, an Orlando Sentinel reporter, provided step-by-step developments from the hearing on his Twitter feed. Apparently, the state argued that Zimmerman and his wife deceived the court about his lack of money by failing to disclose the donations he received through a PayPal account. Furthermore, the prosecution argued that Zimmerman called his wife, who testified on his behalf during the initial bond hearing, and told her not to mention the money to the judge.

After hearing the state's evidence, the judge revoked the bond. Unless the judge issues a new bond, Zimmerman will have to report to jail until there until the completion of the trial.

Although the trial has not begun, this development could ultimately hurt Zimmerman's defense. If he chooses to testify - and it seems that he will, because he needs to explain his self-defense position - the prosecutor can undermine his testimony by raising false or misleading statements he offered during the bail hearing.

The prosecution also argued that Zimmerman turned over a passport to the state that he had previously reported as lost or stolen. He retains his valid passport. Although it is unclear whether this information influenced the judge's decision to revoke the bond, it too could undermine Zimmerman's credibility at trial. All in all -- this was a bad day for Zimmerman's defense.

UPDATE: The judge ordered Zimmerman to report to jail within 48 hours.

The Trayvon Martin Narratives: The Stories the Evidence Tells

The Trayvon Martin story no longer feeds the daily news cycle.  Many people, however, remain interested in the incident. Also, the media still seizes upon any new item of information released regarding Martin's death.

Some conservatives say that the media frenzy has subsided because the flow of evidence from the case credits George Zimmerman's contention that he acted in self-defense when he killed Martin. Other logical reasons could explain the dip in coverage, however. For example, many activists simply wanted the state of Florida to charge Zimmerman. Now that this has occurred, they are on to other business.

Furthermore, many other items -- from the important to the mundane -- have occupied the national media, including the presidential race, LGBT rights, Cory Booker, and the economy. Needless to say, every development in this story will likely capture the media's attention. In any event, the public should learn from this process that the law operates very slowly. If Zimmerman is prosecuted, this might not take place until next year. It is impossible to expect the media to remain fixated on this story at all times.

Important Facts Related to the Prosecution's Evidentiary Submission

Angela Corey, the special prosecutor handling this matter, has released some evidence in the case against Zimmerman, as well as the documents charging him with second-degree murder. Although both sides want certain pieces of evidence shielded from public disclosure, some information that looks favorable to Zimmerman has already been released to the media by unnamed sources.

Regardless of the source of the leaks, people should remember that only a fraction of evidence that Corey submitted has been released for public scrutiny. Furthermore, Corey has not even released all of the evidence that investigators have collected in the case. Specifically, the prosecution has allegedly compiled several inconsistent statements that Zimmerman made to investigators and will file these statements into evidence. Zimmerman's attorney is fighting to keep that evidence shielded from public disclosure.

In addition, even though the prosecution has submitted the information that justifies charging Zimmerman with second-degree murder, it is not clear at all what parts of this information will be admissible at trial. For example, many commentators made noise over the coroner's report that found traces of THC, the active ingredient in marijuana, in Martin's body.  According to experts, however, the amount was so slight that it could not possibly have impacted his behavior the night he was killed. Indeed, he probably consumed it days earlier. If the experts' description of the drug test is accurate, then the judge probably would not allow the defense to mention the results. This information is nonprobative and irrelevant to the facts in the case. Furthermore, it would potentially excite prejudice and mislead the jury. Standard evidentiary rules in state and federal courts exclude nonprobative and irrelevant evidence from trial.

Ideological Narratives

Predictably, commentators have competing views of the evidence submitted in this case thus far. At best, it is probably safe to say that the prosecutor has overwhelmingly met the probable cause standard required to arrest and prosecute an individual.

The standards at trial are more difficult. Because the Constitution requires prosecutors to prove "guilt beyond a reasonable doubt," it is likely that guilty people can go free. Typically conservatives call rules that guarantee due process to defendants "technicalities" and ask about the "victim's rights." These rules, however, implement the Bill of Rights -- one of the most important additions to the Constitution. Accordingly, it is shocking to see conservative commentators embrace Zimmerman's rights in this case. Undoubtedly, their support of a defendant in a murder case -- especially a Latino defendant -- is situational.

On the other side, liberals who support Martin should remain true to their general support of liberal interpretations of the Constitution. Many media outlets have ominously reported that getting a guilty verdict against Zimmerman will be difficult. This fact should not constitute news. Getting a guilty verdict should present difficulties in any case.

Personal liberty is one of the most cherished rights secured by the Constitution. Although conservative judges and legislators continue to erode civil liberties with restrictive court rulings and legislation, liberty remains a vital part of the nation's legal culture. That the prosecution will have a tough time convicting Zimmerman should not upset anyone who values liberalism.

Perhaps conservatives will join liberals and fight for this principle outside of Zimmerman's prosecution.  Their anger over media and political commentary describing Martin's death and the treatment of Zimmerman as likely instances of racial injustice have lead them hypocritically to embrace defendant's rights. Their behavior is transparent.

Reading the Evidence

Some commentators have argued evidence that suggests Zimmerman sustained injuries the night that he killed Martin substantiates his assertion of self-defense. This argument, however, overlooks many aspects of the case. First, it overlooks the law. The law of self-defense allows a defendant to defeat a murder charge if that person reasonably believed the he or she would suffer lethal force or experience serious bodily injury at the hands of the defendant. The use of force has to be proportional to the threat. And the person must have a reasonable fear -- not just any fear -- that he or she will suffer the harm necessary to warrant lethal force.

Thus, even if Zimmerman acted in his mind to defend himself, a jury would still need to determine whether he acted reasonably. The jury would likely consider the extent of Zimmerman's injuries, whether or not Martin had a weapon, and other factors.

Furthermore, the law requires that initial aggressors retreat from the scene or otherwise indicate a desire to retreat prior to using force. Prosecutors will try to prove that Zimmerman started the aggression -- by leaving his car (after being instructed not to do so), chasing Martin, and frightening (or even hitting) him. If the prosecutors can convince the jury that Zimmerman was the initial aggressor, this would go very far in proving his guilt. Under those circumstances, Martin reasonably acted with force to defend himself from Zimmerman. Zimmerman's injuries are thus consistent with a frightened teenager fighting for his life. Rather than retreating from the scene, Zimmerman killed the frightened kid. 

The facts favor Zimmerman much more if one considers Martin as the initial aggressor. The defense will try to argue that Zimmerman was simply investigating a potential threat to his neighborhood when Martin spontaneously attacked him. Commentators who believe that the evidence substantiates Zimmerman's defense all seem to operate under the assumption that Martin was the initial aggressor. The evidence, however, does not necessarily prove this assumption. Looking at the totality of the facts -- beginning with Zimmerman's first call to police, a reasonable juror could conclude that Zimmerman instigated the fight by following Martin in his car and on foot at night.  Martin's girlfriend will testify that he said he was afraid of Zimmerman. If her testimony is credible, then the facts could support a guilty verdict.

Final Words: Race and the Law

Trials by media are loathsome. They mislead, rather than educate, the public about legal practice. They potentially influence juries. And they are simply a ratings draw for media. Last year, another Florida murder trial generate tons of media coverage. Casey Anthony was tried for murdering her daughter. According to media reports, it seemed that her guilt was a sure thing. From a legal perspective, however, the evidence was very weak. The prosecution did not even know how the child died, and the defendant denied killing her. The case against Zimmerman differs substantially. The prosecution knows how Martin died. Zimmerman has admitted that he shot Martin. The prosecution knows how Martin and Zimmerman's paths collided that fateful night. Now, both sides will construct narratives to weave the evidence together for jurors.

From a civil rights perspective, the tragedies in this case are Martin's death and the initial failure of the police to arrest Zimmerman. To the extent that race was involved in this case, the police inaction is probably the most likely place. Also, race could have impacted Zimmerman's decision to pursue Martin (the "fucking punk") and to kill him.

The prosecution has not alleged that race is a factor in the case; so the issue will not arise explicitly at trial. But race will absolutely play a central role in this case -- both in the media (already has) and in the courtroom. Zimmerman's lawyer will pursue any legal means to exclude black jurors; the prosecution will try to maximize the number of black jurors. The prosecution will probably want a good number of women on the jury as well. Women could probably relate to the prosecution's narrative that Martin felt horrified by Zimmerman, who had followed him in his car and then left the car to chase him down. Woman could also have a particular connection to Martin's mother, who will probably offer emotional testimony at the trial.

Zimmerman's lawyer will want several white men on the jury. This is not a "race card." Polls show that Zimmerman has the largest support among whites -- particularly among white Republicans and men (which at this point in history are redundant categories). While many people have tried to dismiss the factor of race inside and outside of this case, it remains relevant in society. On the other hand, the prevalence of racism does not mean that a conviction must turn on Zimmerman having acted out of racial animosity. Murder is murder - whether it is racially based or otherwise. The state is prosecuting Zimmerman for a homicide, not for a hate crime. Now that Zimmerman has been charged, let the state prove is case.

IN DEFENSE OF CORY BOOKER: Why Think Progress Is Unfair and Unbalanced

Liberal blogs have fallen in line to excoriate Newark Mayor Cory Booker for describing President Obama's campaign attacks against Bain Capital as "nauseating." Although Booker has tried to walk back his commentary, he still faces a lot of criticism, especially since rightwingers have used his comments as a weapon against the president's campaign strategy.

For several reasons, I strongly support Cory Booker, and I condemn progressives who criticize him for his remarks. And as I explain below, I am especially troubled by a Think Progress article that seeks to raise questions about Booker by exposing campaign donations he received from Bain executives and other financial industry employees. Here is why I support Booker and disagree with Think Progress.

FIRST, Booker was seemingly stating his true feelings. I understand that a surrogate for a candidate should stay on message. But to the extent that Booker deviated from a dictated message, this is a problem between him and Obama's campaign team. It is not an issue about his morality and value as a public official. If we have reached a point in our society where honest reflection and disagreement are sources of scorn, then public discourse in this country is in a state of extreme crisis.

SECOND, Obama has received more money from Wall Street employees and PACs than any other politician in recent US history. This is where Think Progress becomes relevant.

Think Progress reports that Bain and other members of the "financial industry" gave Cory Booker $565,000 dollars during his 2002 run for mayor of Newark. The article states that this fact "suggests a possible reason for [Booker's] unease with attacks on Bain Capital and venture capital." If this is a reason for Booker's unease with attacks on Bain and venture capital, then progressives should express similar discomfort regarding Obama attacking the same groups.

In the 2008 election cycle, Obama's top ten donors included: Goldman Sachs ($1,013,091), JP Morgan Chase & Co. ($808,799), and Citigroup ($736,771).  UBS AG, a large multinational financial services company, occupied the fifteenth position on the list ($532,674)(Please note: these figures come from employees and PACs of the companies, not from direct corporate donations).

Wall Street contributions accounted for 20 percent of Obama's big money campaign donations in 2008. Obama received $13,100,000 from bundlers in the financial services industry. This amount was second only to the $21,7000,000 he received from law firms, which undoubtedly included many firms that provide services to the financial sector.

Although Mitt Romney has overtaken Obama among Wall Street donors, Obama still hopes to collect money from the financial services industry, including from persons involved in the private equity business.

THIRD, Obama has received money from Bain executives. This is perhaps the most striking omission from the Think Progress critique of Booker.

Stephen Pagliuca, a Managing Director of Bain Capital, has given $38,500 to Obama Victory Fund 2012. He also gave $30,800 to the DNC late last year. Jonathan Lavine, the Managing Partner of Bain Capital, gave equal amounts to Obama and the DNC, as did Mark Nunnelly, another Managing Director for Bain. This information is collected in an article on Commentary Magazine, a conservative blog. But it appears originally on the Huffington Post "Fundrace" page.  It is not mentioned anywhere in the Think Progress critique of Booker.

Overall, "[e]mployees of Bain Capital and Bain & Company have given more than $152,000 to Obama's campaign and the joint fundraising operation he runs with the Democratic National Committee." Although Romney has received much more from Bain employees than Obama, as of today, Obama has received over $1 billion in campaign donations since he began running for the 2004 senate elections. He is the only politician ever to raise this amount of money in US history. Clearly, a large chunk of that money has come from financial services and other corporate sectors.

Final Thoughts
Reasonable minds can disagree over the relevance of Romney's history at Bain to his candidacy for president. An individual's past professional performance is certainly something that voters should scrutinize. But Obama's campaign is trying to make a broader statement about Romney, wealth, private equity, and the "middle class."

Perhaps this latter use of Romney's history by Obama's campaign caused Booker discomfort. It is definitely hypocritical to condemn private equity while relying on the profits it generates to run for president. Also, Obama's campaign has stated that it does not disagree with private equity, which makes Booker's comments even more compelling.

The liberal criticism of Booker has nothing to do with reasonable debate. Instead, many liberals are seeking to portray him as a corporate hack. These criticisms, however, ignore his political record; they also ignore the vast amount of money that Obama has received from the financial services industry.

Liberals have rightfully complained about the coarse nature of political discourse during Obama's presidency. They have no standing to complain, however, when they are engaged in the same type of harmful discourse.

Note: This article was updated to clarify that Obama has attacked Bain Capital - not Bain and Company.

Trayvon Martin: Breaking News and Updates - May 14, 2012

Prosecution Evidence
Special prosecutor Angela Corey filed evidence that supports charging George Zimmerman with second-degree murder for killing Trayvon Martin. The Orlando Sentinel has details in this breaking story. This type of filing is done routinely in criminal cases. Zimmerman's attorney will now have the opportunity to prepare a defense for his client.

According to the Orlando Sentinel, the evidence includes video from the club house in the housing development where Zimmerman shot Martin. Zimmerman stated that Trayvon was approaching the clubhouse during his call to police.

Zimmerman wants to keep the public from seeing the evidence. His attorney is filing a motion in that regard.

Trayvon Martin Shooting Target
In one of the most despicable events related to this case, an anonymous online vendor has created a likeness of Trayvon Martin for use as a shooting target. The seller has not announced how many items were sold, but says that the product sold out in two days with "overwhelming" response. Sickness sells.

Trayvon Martin's Mother Films Mother's Day Message 
Sybrina Fulton, the mother of Trayvon Martin, filmed a video message for Mother's Day. In the video, Fulton expresses grief over the loss of her son. She also campaigns against gun violence and "Stand Your Ground" laws, similar to the one in Florida.

Questionable Journalism: Washington Post Explores Romney's Teen Years

Mitt Romney as a teenager

 The Washington Post wins today's "questionable journalism" award for publishing an article that delves into Mitt Romney's high school years in order to unearth "troubling incidents." The article reports that Romney engaged in acts of bullying with several other students at the elite prep school he attended. Romney is now 65-years-old.  Most of the events the article describes occurred nearly one-half century in the past.

The article is not even remotely relevant to Romney's worthiness as a president. If he were still assaulting and harassing young boys, then, clearly, the content of the article would have significance. It would establish a possible pattern of unacceptable behavior. Neither the Washington Post nor any other credible news source, however, has presented evidence which demonstrates that Romney continues to harass and abuse other people. This article is simply a hit piece.

The article is similar in its lack of substance to a 2008 New York Times report that dragged up rumors about John McCain having a close relationship (no specifics -- just a "relationship") with a female lobbyist. The story received a lot of criticism. At the very least, both of these stories press against the boundary of good journalism.  It is also fair to say, however, that these stories cross that line. The Washington Post article has given readers another reason to question the fairness of the media.

There are many important issues to examine regarding Romney and President Obama. Hopefully, the Washington Post will attend to these matters, rather than providing useless and questionable information concerning the candidates.

Obama's "Support" of Marriage Equality: Read the Fine Print

The headlines, including on this blog, are buzzing about President Obama's sudden support for same-sex marriage. Obama stated this position during an interview with Robin Roberts of ABC's Good Morning America. Excerpts of the interview will air tonight on World News and Nightline. The full interview will air tomorrow on Good Morning America.

Although Obama stated that he personally believes that gay men and lesbians should have the right to marry under the law, he also qualified this position in a way that is very important from a legal standpoint. Obama believes that states should have the power to decide this issue on their own.

Why is this qualification important from a legal standpoint? This qualification means that Obama's support of same-sex marriage is strictly personal - not legal (even though he speaks about it as a "right"). If states retain the authority to define marriage in opposite-sex terms, then gays and lesbians cannot claim a constitutional right to marry each other.

To understand this argument, consider the quintessential liberal setting in which this type of reasoning frequently appears: abortion. Many opponents of abortion argue that states should have the sole voice on this issue and that it is not a matter for the federal government or federal courts. Ron Paul and many other conservatives have embraced this very position.  The Supreme Court, however, held in Roe v. Wade that the Fourteenth Amendment gives women the right to terminate a pregnancy. Although the Court has severely weakened Roe since it was decided, this right is still protected by the Constitution.

Because abortion is a constitutional right, the federal courts and Congress have the power to protect it.  Article III of the Constitution gives the federal courts the authority to decide "cases or controversies" that involve questions of federal law -- including constitutional law.  The Fourteenth Amendment gives Congress the express power to enforce the rights it contains.

Accordingly, when critics argue that abortion should remain solely within the purview of state law, they are effectively arguing that it should not qualify as a fundamental liberty interest protected by the Constitution. States do not have complete authority over constitutional rights. This fact is well established and supported by constitutional text.

Applying this same reasoning to marriage equality, the argument that states should have autonomy over the subject of marriage means that states could prohibit or permit same-sex marriage.  The Constitution, which is federal law, would have no bearing on this decision.

Accordingly, Obama's new position on marriage equality implies that the Constitution does not or should not guarantee marital equality for gay men and lesbians. Instead, it is up to states to recognize this interest.

Unfortunately for people wishing to enter into a same-sex marriage, only six states and the District of Columbia currently allow them to do so. While advocates of same-sex marriage have loudly applauded Obama's new position, I implore them to read the fine print!

I Do! Suddenly, Obama Endorses Marriage Equality (Updated)

President Obama stated today that he supports marriage equality. The administration's position on this issue has suddenly evolved. Throughout his candidacy and for all of his first-term (until today), President Obama has stated that he personally opposes same-sex marriage. At the same time, he has stated that he opposes efforts to make it illegal (specifically making that argument in the context of California's Proposition 8).

Last weekend, however, Vice President Joe Biden stated during an interview that he supports marriage equality. The Obama administration immediately began walking back the comments. Instead of supporting marriage equality, both Biden and the President supposedly endorsed only "equal benefits" for same- and opposite-sex couples. Now, just a couple days after clarifying his stance, Obama has suddenly reached a new position favoring same-sex marriage.

Political Implications
Since I am already extremely cynical about politics and politicians, this move does not surprise me. Obama's shifting positions on same-sex marriage, however, put a wrinkle in any strategy that seeks to portray Mitt Romney as a waffler. Because it seems that Obama will instead portray Romney as a "severe conservative," perhaps he does not deem the appearance of waffling too important. Certainly, Romney cannot use that line of attack against Obama.

Also, Obama's new position should do much to impress or at least silence critics of Obama's record with respect to LGBT rights. Obama has endorsed the "crow-jewel" of the contemporary LGBT social movement. Indeed, during his presidency, Obama has been more responsive to LGBT politics than to any other liberal cause. LGBT social movements deserve a lot of credit for pressuring the president on these issues. Also, because these issues typically involve questions of formal equality, endorsing them is not particularly threatening -- relative to questions of equal opportunity and economic distribution.

Obama, Race and Poverty
With respect to equal opportunity and wealth concerns, it is deeply troubling that the groups who are most vigorous in their support of Obama get less attention from him in terms of policy. Blacks and Latinos delivered Obama the 2008 election by helping him win key swing states. Without black support, Obama would, in fact, have lost many blue states. A majority of white voters in many states that are deemed liberal voted for McCain and have selected Republican presidential candidates in the recent past.

Despite their value to and overwhelming support for Obama, poor people and persons of color, many of whom are LGBT, cannot get the type of visible support for and quick responses to their concerns as LGBT groups. In September 2011 after some black members of Congress complained that Obama was not paying attention to poverty and unemployment among blacks, he said in response: "Take off your bedroom slippers, put on your marching shoes. Shake it off. Stop complaining, stop grumbling, stop crying."  Obama has never never used this type of harsh rhetoric in response to complaints from other liberal constituents, including LGBT individuals. I highly doubt that he would ever do so.

Racial justice movements, however, bear some of the blame for the president's silence on many race and poverty issues. Racial justice activists have been very generous in their support of Obama, and they have refrained from criticizing him for the most part.  Tavis Smiley and Cornell West are popular exceptions -- yet they have received very harsh criticism from blacks for their critiques of Obama. Some of Smiley's and West's criticisms have been unfair and somewhat personal, but the responses to their arguments from many black commentators seem to oppose any criticism of President Obama on issues of race.

Even Rev. Al Sharpton, who has criticized other presidents and candidates for not openly addressing the "concerns" of blacks, has defended Obama's reluctance to address issues of race and poverty. Sharpton has stated that Obama must solve these issues in a colorblind fashion, which contradicts the race-conscious politics he has advocated in the past and in which he continues to engage. Sharpton has also dismissed Obama's critics as being biased. What evidence does he offer to support this accusation? Some of them supported Hilary Clinton in 2008 (gasp!).

If having a black president means virtual silence on issues of race in the White House, then Obama's election seems only to provide symbolic gains with respect to race. Poor persons of color need material change -- not symbols.

UPDATE: Does Obama really support marriage equality under the law? See this important update: Obama's "Support" of Marriage Equality: Read the Fine Print.