Solution to the superdelegate mess--borrowing from SCOTUS

Perhaps I can propose another solution for the superdelegate problem. The superdelegates should borrow from the Supreme Court. Lawyers and Law Students will probably recognize the words "Caroline Products  Footnote 4". yes, we lawyers like to dabble in such seemingly mundane pieces of information such as footnotes. What seemed like an innocent enough footnote has become the basis for a significant part of constitutional theory called the Caroline Products Theory, Political Process Theory, etc--at least this is what I was thought in law school.

Basically, according to the Caroline Products Theory, the Supreme Court will only step-in to change a result of the democratic process if there is a failure in the process. For example, if you can make a strong argument that the situation with FL and MI is the result of a FAILURE in the democratic process, you get a strong argument for the court (or here, superdelegates) to step in and do something different from what the democratic process has produced.

The reason the Supreme Court has this theory is to avoid being antidemocratic or countermajoritarian. See, we have a "democratic" political process that determines "winners" and "looser." But our constitution gives the Supreme Court (or one can argue the late Chief Justice Marshall claimed) the right to review results of this democratic process: laws, legislation, etc.

The problem for the Supreme Court is in deciding when to exercise this power? The Supreme Court has seen wise to say that they should only use this power when there is a flaw in the democratic process. This way, the court is not imposing its views on the rest of the country but is instead correcting flaws in the democratic process to allow democracy to function better. It corrects the process when it misfires and avoids a countermajoritarian result.

Of course, there are differences between the Supreme Court and superdelegates. For one, an argument can be made that, unlike the Supreme Court, superdelegates are a part of the democratic process. However, because each superdelegate has a vote worth over 10,000 times my vote, they look more like the Supreme Court, where each justice has a vote worth over 27 million times my vote. But there's also the fact that the superdelegates voting IS a part of the "democratic" process in the sense that they have to vote before the nominee is decided, whereas Supreme Court decisions are seen more as being something that comes after the bargains have been made to undo or reinforce whatever bargains were struck by the different interest groups. So in that sense, one can argue that superdelegates are, indeed different from the supreme court.

However, this difference notwithstanding, I think the practical effect of superdelegates overturning the popular vote and the Supreme Court overturning legislation is unlikely to be different. So the superdelegates, in making their decision, should look to what the Supreme Court has done as a model for how to make their decision. If they should decide to overturn the popular vote, the superdelegates should base their decision on correcting structural problems in the nomination process, not on substantive believe that they know better than the rest of us. That would avoid the countermajoritarian problem inherent in have a few overturn the will of the majority--even if it should be a problem because they have the express authority to do so.


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Do you agree?
Agree
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This is really not a big deal

Votes: 5
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Re: Solution to the superdelegate mess (none / 0)

Like the disenfranchisement of MI and FL and the caucus systems. Sound's like a good idea.


by MediaFreeze on Mon Mar 24, 2008 at 04:15:32 PM EST

Re: Solution to the superdelegate mess (2.00 / 1)

Sure. the argument would that that the disenfranchisement of FL and MI represents a failure in the process. if so, then the results are suspect people, generally, should not have a problem with the superdelegates overturning the result of a flawed process.


by poserM on Mon Mar 24, 2008 at 04:43:24 PM EST
[ Parent ]

Maybe next time (none / 0)

While I think the current system is too complicated as it is, I think you're taking away the superdelegate's only reason for being: to be a party boss and vote with good judgement.

I'd rather get rid of superdelegates altogether than install ridiculously complicated mid-season process vetting systems.

Regardless, your suggestion wouldn't help us with our current troubles; I expect the entire process will be getting a dramatic overhall after the elections.


In this avalanche, the pebbles get to vote.
by Dracomicron on Mon Mar 24, 2008 at 04:26:11 PM EST

Re: Maybe next time (2.00 / 1)

The problem with overturning the elected delegates is that it could produce party-infighting that could well lead to a loss for Democrats in November. We need a solution for superdelegates that will enable us to avoid a fight at the convention. Something that all participants can buy into and see as legitimate. Superdelegates voting as "party bosses" and tells us what is best for us (i.e. we made substantively wrong decision) is arguably not the right approach. Th Supreme Court knows this. Thay why they don't say: Congress, we know better than you even thou you are the elected representatives of the people. Instead they say: Congress, there was a problem coming to your decision.


by poserM on Mon Mar 24, 2008 at 04:59:06 PM EST
[ Parent ]

I think (none / 0)

I think you've been thinking about this way too much.  


by karajan72 on Mon Mar 24, 2008 at 04:34:24 PM EST

Re: I think (none / 0)

well, it is a big problem we have. No?


by poserM on Mon Mar 24, 2008 at 04:59:33 PM EST
[ Parent ]

Just let (none / 0)

Just let the super delegates decide individually.  Each one will make up his or her mind according to what they think is best.  That's how it's going to happen.


by karajan72 on Mon Mar 24, 2008 at 04:35:26 PM EST

Re: Just let (none / 0)

I think that is what he is saying. But, he is also presenting a "legal" rational for the role of the superdelegates that can be used to justify their actions. Certainly, the Judiciary is freee to do whatever they want, but their conscience guides them to interpret law and correct flaw in legislation, not creat law.

I think this is a pretty profound contibution to the discussion. Excellent diary.


by MediaFreeze on Mon Mar 24, 2008 at 04:59:32 PM EST
[ Parent ]

If it's all the same to you... (none / 0)

...I'd like to decide the presidency without the involvement of the Supreme Court.


by KTinOhio on Mon Mar 24, 2008 at 04:47:44 PM EST

Re: If it's all the same to you... (none / 0)

I can understand that you don't want the supreme court involved. I agree. I see no reason why they should be. I am simply analogizing between the role played by the supreme court and superdelegates and suggesting that the superdelegates can (and perhaps should) borrow from the supreme court.


by poserM on Mon Mar 24, 2008 at 05:03:50 PM EST
[ Parent ]

Re: Solution to the superdelegate mess--borrowing (none / 0)

So here's a question - what if so-called "pledged delegates" change their vote (which they can do -  they are no more bound (except in some states through the first ballot) and more vote for HRC? Are Obama supporters going to be crying foul then?  Those ARE the rules.


by cmugirl90 on Mon Mar 24, 2008 at 05:38:15 PM EST

Re: Solution to the superdelegate mess--borrowing (none / 0)

Um. I think the answer is pretty obviously yes. If BHO's pledged delegates went against the choice of the voters who sent them to the convention, I would imagine Obama supports would be a little miffed and cry foul.  What is your point?


John McCain is surprisingly bad for this country
by minnesotaryan on Mon Mar 24, 2008 at 06:01:28 PM EST
[ Parent ]


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