Academic

Stanley Fish Should "Think Again"

By Robert Justin Lipkin

In a recent column, Stanley Fish argues that it is nonsense to believe that the recent flap over the role of superdelegates in choosing a Democratic candidate for president includes ethical considerations at all. Just as the purpose of the Electoral College is countermajoritarian, so too is the purpose of Democratic superdelegates. Hence, superdelegates should not feel bound to vote for the candidate with the most pledged delegates. This defense of Democratic superdelegates is true but splendidly irrelevant to whether there are ethical issues that arise over the choice of the superdelegates. Only if knowledge of their purpose were widely disseminated would Fish's argument have even a slender thread of plausibility. That was not the case. Vast numbers of Democrats had no idea that their vote could be overturned by a practice similar to, yet also significantly different from, the Electoral College's purpose in presidential elections. Had ordinary voters, such as myself, known about the existence and purpose of superdelegates, they would have the choice to vote and therefore they should be committed to the Party rules as Fish insists or to not vote in the Democratic primary at all. (Had I known this was the choice I would not have voted in the Democratic primary. Indeed, had I known about the existence of the superdelegates, I would never vote in the Democratic Party primary again. Party bosses dominating the nominating process indeed.  Shades of Tammany Hall.) Hence, unless a case can be made that any voter in the Democratic primary should have known of the existence and purpose of superdelegates, Fish's argument fails dangerously. The very idea that the Democratic Party's rules for selecting a presidential candidate reflect the constitutional requirement of an Electoral College could easily lead to the dissolution of the Democratic Party.  Even so, there is an enormous difference between the Electoral College and superdelegates.  Members of the Electoral College, in most states, are free, in principle, to cast their votes for the candidate they deem better for the country, but they are elected for that purpose by the people. Superdelegates are never subject to election of any kind. This renders them more like the unelected justices on the Supreme Court than elected Senators who can block legislation initiated by the representatives of the people in the House.  Who could ever imagine a president being selected by the Supreme Court? Why the very idea is inconceivable.

Professor Fish is too savvy an observer to offer the argument that despite the Party's adoption of superdelegates only recently (1982, I think), and despite the Party's failure to ever conscientiously publicize the existence and purpose of Democratic superdelegates, no grounds exist for ethically challenging this august body's right to vote for whomever it sees fit. But, of course, such grounds exist. First, reliance interests and the reasonable expectation that one's choice of candidate will prevail if one is in the majority, precludes granting any normative status to the role of superdelegates. Second, pulling the superdelegate rabbit from the Democratic Party's hat can bring ruin on the Party.

Moreover, even if Fish is right, there's no problem for ordinary Democrats to urge superdelegates, on moral grounds, if not according to the Party's rules, to endorse the candidate with the most pledged delegates. Indeed, if the purpose of superdelegates is to provide Party bosses with the authority to broker nominations, in the hope of determining the "better" candidate for the Party, then following the pledged delegate vote might be prudentially and morally required. One can argue that the candidate chosen by a majority of pledged delegates has a much better chance to prevail in the general elections. And not following this choice might stimulate a vast exodus from the Democratic Party. Stanley Fish, once again, seems more intent on provocation than on thoughtful political commentary.

Credit for Image

Full post as published by Essentially Contested America on March 28, 2008 (boomark / email).