Academic

Katz on Smoke-Filled Rooms

By Lawrence Solum

Ellen D. Katz (University of Michigan Law School) has posted Smoke-Filled Rooms on SSRN.  Here is the abstract:

The smoke-filled room is making a comeback. Condemned as a corrupt, anti-democratic means for nominating candidates to public office, the smoke-filled room has recently found prominent and diverse defenders. Last winter, Democratic stalwart Geraldine Ferraro celebrated the institution when she urged Democratic superdelegates to exercise their controlling power independently of, or even counter to, the will of the Democratic Party's rank and file. A few weeks earlier, Justice Scalia celebrated the smoke-filled room as a traditional, legitimate and accepted means for selecting candidates for public office, and hence one on which New York State could permissibly rely to select nominees for state trial judge.

Smoke-filled rooms are not all alike, and the differences among them matter. This paper explores these differences by comparing the role of the smoke-filled room in the nomination process Barack Obama traversed in order to become the Democratic Party's nominee for president with the one Margarita Lopez Torres confronted when she sought her party's nomination to become a trial judge in Brooklyn. Broadly similar in structure, both nomination processes rely on decentralized state-run primaries to select delegates to attend party-run conventions that select the party's nominee. And both give party leaders discretionary power to determine the nominee absent meaningful input by the party's rank and file.

These two smoke-filled rooms nevertheless differ in important respects. This paper shows how the one Obama confronted and Ferraro defended was more transparent, penetrable, directed by party rule, and politically contestable than was the one Lopez Torres faced and Justice Scalia upheld in New York State Board of Elections v. Lopez Torres. These differences explain not only why Obama succeeded and Lopez Torres failed, but also why the smoke-filled room inhabited by Democratic superdelegates is a far more viable political structure.

Full post as published by Legal Theory Blog on September 04, 2008 (boomark / email).