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I was away from the site most of the day and so couldn't participate in what looks like interesting discussions begun as and after the RBC votes came in.  Guessing others may have been in similar situations, I'm posting this diary to put my own views on today's activities on the record and allow other latecomers to have their say in a setting where it stands at least some chance of being read.

First, Kagro X was mostly right today, except when he said that Harold Ickes was right.

Second, Hillary's disruptive and angry supporters at the RBC meeting put Obama in a position to end this soon, but he will have to throw a hard pucnh: call on her to reject and denounce the sort of support we say today.  Hillary can't hide from the need to take a stand, then.

Third: Obama can pull the final rug out from under Hillary once he has enough superdelegates in hand by giving her what she wants once it no longer matters, thus upholding the "cheaters never prosper" principle.

(1) Rough justice

Based on Kagro's update to his last story of the day, I take it that in his discussion he came to the conclusion that the RBC was acting as a court of equity -- grounding a remedy on questions of fairness -- rather than a court of law, which grounds a remedy based on rules alone, however unfair.  What courts of equity do -- bearing in mind that in federal law, at least, courts of equity and law are not separate courts, and that the terms actually address different requests that for remedies can be made of courts -- is probably better better known as administering "rough justice."  It's not quite the same as rough justice, as equitable remedies generally don't involve things like direct monetary compensation, but it involves cobbling a solution that does justice.

I can't weigh in on whether the RBC actually had the right to present a remedy that was, essentially, equitable rather than legal.  (I know that there are some things that will take me too long to study in order to come to a reasonable conclusion.)  I know that Kagro says that they had no right to impose the negotiated 69-59 split requested by the party, (because it involved fiddling with the contest results and giving all of the uncommitted delegates to Obama, which seem like equitable remedies), and that emptywheel's reading of the RBC lawyers' report said that they could not do it, even though a lot of critical parties, including many Hillary supporters, seemed to agree it was the right thing to do.  That's some persuasive evidence that what happened today "couldn't happen."

If, as emptywheel had argued, the lawyers argued that the choices were simply between (1) accepting the 73-0 split between Hillary and Obama with 55 uncommitted delegate seats left to fight over and (2) not accepting the results of the primary as a guide at all, then the right thing to do was for the Rules Committee to kick the can down the road to the Credentials Committee, which as I understand it can impose an equitable solution like the "69-59 at half-strength," and let it be settled in mid-June.

I had become so convinced that emptywheel and Kagro were right that I even included a poll in my diary written while the Rules Committee was in recess asking whether RBC should solve the problem today or kick the can over to the Credentials Committee.  As of this moment, there are 64 votes in that diary: 62 saying "solve it now," one saying "other," and my lonely vote saying "defer it to Credentials."  Shows what I know.

I expect that most of us would agree that for Rules to refer resolution of the Michigan issue for Credentials Committee would be Bad For The Party, even if Right By The Rules.  It means prolonging the agony of this process.  Now, it is true that the agony (at least the Michigan portion of it) is being prolonged anyway, because Hillary may contest the Rules Committee's resolution anyway, but that probably won't end up mattering.  By the time Credentials meeting starts, Obama will have enough delegates in hand -- probably including former Clinton delegates -- that he can substitute a bunch of Hillary delegates into his Michigan delegation and still be in no danger of losing.

Harold Ickes is wrong, of course, because his argument is predicated on the notion that Michigan had a primary.  It did not, of course.  That is why many Democrats didn't vote, many chose to vote in the actually contests Republican contest, and many may have voted for Hillary whether or not they actually preferred someone else whose name was not on the ballot -- perhaps on the theory that they disliked Kucinich and wanted the party to be less embarrassed by its frontrunner receiving so few votes.  You simply cannot read anything definitive into any vote cast in the Michigan Primary, when push comes to shove.  That's because it was not an actual primary.

The question, then, is what RBC may do when a state has -- whoops! -- failed to conduct a primary, but has come up with a delegate apportionment that was in effect negotiated between proponents of both remaining candidates within the state party.  The party in essence said, hey, we apparently didn't quite hold a legitimate primary this year, but we all got together and figures out what we think is a fair reflection of how our constituents would have voted had they been allowed.  In that situation, is the RBC truly required to kick the can down the road to the Credentials Committee, especially given that the outcome of an Obama-dominated Credentials Committee vote is already universally understood, and given that Hillary can take a minority report from Credentials to the convention floor anyway, no matter what happened in the Rules Committee?  It's not clear to me that they have to allow the party to suffer harm for no good reason.

Some legal principles guide this intuition -- some analogy to the notion of "futility" in exhaustion of legal process; the notion voiced by Justice Jackson that "the Constitution is not a suicide pact" -- but the basic reason is that even if the RBC acted "ultra vires" (beyond its authority) in this respect, it would not end up mattering because the ultimate consequence is pretty much the same regardless: Credentials, with its equitable powers, gets to settle things, with the possibility of appeal to the convention floor.  In fact -- and to me this is the clincher -- the aggrieved party (that would be the Clinton campaign) is better off if RBC acts ultra vires than if it does not, because this way it gets an 10-degelate (five vote) when a decision that eschewed equitable remedies would leave each campaign with no delegates, meaning a tie vote.  The only apparent guarantee is a lot of enmity among the people of Michigan for the Democratic Party, which serves no one.

It is very rare when a court -- or, let's be fair, in this case a committee for a private, albeit regulated, organization -- actually makes things better for everyone by abusing its power.  But this seems to be one of those rare cases, specifically because this tentative resolution -- in the light of Credentials making a more serious resolution in a few weeks -- does not really change much.  It's damn interesting, that's for sure, but I don't think it threatens small-"d" democracy.

(2) Reject and Denounce

The pro-Hillary demonstrators within the meeting were out of line.  Is anyone here (at least with the guts to post comments along with diaries) really going to challenge that?  The street protestors outside were out of line.  They are not being good Democrats.  They are not serving the interest of eventual party unity.  They are just being rough on Obama for their own odd reasons.

These protestors, in fact, have foreshadowed the worst we fear might come from Hillary Clinton.  The good thing is that they have placed the question of whether they will Zell Out the Party squarely on the table.  And so, in the spirit of Hillary's challenging Obama on his unsolicited endorsement from Louis Farrakhan, I think that it's only fair to ask Hillary a question: Does she reject and denounce these supporters?  Does she think they're wrong -- or merely premature?

Personally, I'm happy if she isn't asked these questions until June 4.  Let her finish the primary season.  But then she needs to be asked them.  No matter what happens with the Credentials Committee, no matter whether she decides to contest its decision at the convention, is this a manner of support she will accept?  It's not too early for her to answer this question.  It is the Big One, after all.  She has gotten herself in a tough position, thanks to her supporters; let's make sure she faces the appropriate questioning.

(3) Acts of grace

Barack Obama will probably be getting a flood of superdelegates soon.  He has the key to resolving the conflict with Hillary once the nomination is safely in hand.  That is: he can direct a certain number of his Michigan delegates to vote as directed by the Clinton campaign.  I think that Harold Ickes said that Obama deserved perhaps 23 of what he tallies up as the 55 uncomitteed delegates, leaving 46 in question -- 46 being the difference between the 69 Obama is getting and the 23 that Clinton concedes.  That is 23 votes.  Obama will be able to lose 23 votes without a problem, eventually.  Once the outcome is settled, he can simply give in on this point, making a convention challenge over Credentials moot.

The important thing, though, is that this would happen not as a matter of right for Hillary, but as an act of grace by Obama.  Only by allowing the matter to be resolved once the outcome no longer matters can Obama preserve the principle that "cheaters never prosper": or, less fancifully, that deterrence of future rulebreaking demands that states can only be excused for their rulebreaking if the benefit they gain thereby cannot effect the result of the overall nomination contest.

Obama can solve this, in other words, once Hillary agrees to withdraw, or one superdelegates make her candidacy irrelevant.  I hope that he will signal soon that such an act of grace will be forthcoming -- as soon as circumstances permit.

Originally posted to Doane Spills on Sun Jun 01, 2008 at 03:38 AM PDT.

Poll

What's your view of Harold Ickes?

60%23 votes
28%11 votes
10%4 votes

| 38 votes | Vote | Results

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Comment Preferences

  •  I'll be away from the site pretty much all day (4+ / 0-)

    today also, due to a party celebrating my first anniversary (which will be the first time my wife's family and mine will have met), but I wanted to get this off my chest while it's still reasonably current.  Besides, Monday and Tuesday I have to write diaries about the California primary, for which I'm sure you can hardly wait.

    Overall, I'm happier today that I was yesterday.  It was a good day for Obama.

    John McCain's Court will overturn Roe; don't kid yourself.

    by Seneca Doane on Sun Jun 01, 2008 at 03:41:06 AM PDT

  •  This thread reserved for Kagro X (1+ / 0-)
    Recommended by:
    Spathiphyllum

    should he wish to challenge any of this.  ;7)

    John McCain's Court will overturn Roe; don't kid yourself.

    by Seneca Doane on Sun Jun 01, 2008 at 03:54:36 AM PDT

  •  Ickes is the Colin Powell of the Dems (2+ / 0-)
    Recommended by:
    Spathiphyllum, Seneca Doane

    A good man used and will be spit out by  cynical power brokers. He will be a good Democrat and support Obama strongly in the GE.

    John McCain: Swiss bank paid McCain co-chair to push agenda on U.S. mortgage crisis

    by organicdemocrat on Sun Jun 01, 2008 at 03:59:32 AM PDT

  •  Ickes is just another... (2+ / 0-)
    Recommended by:
    Seneca Doane, NCrissieB

    ..."get off of my damned lawn you lousy kids" kind of guy.

    The Clinton supporters were disrespectful to say the least. In fact, I'm surprised they weren't escorted from the building. But I seriously doubt she'll denounce them. She needs them.

    From what I've seen, this is over and Obama has won the nomination. Clinton conceding is just a technicality that may be a long time coming. However, my personal theory (as kos puts it: pulled out of you-know-where) is that she won't concede or denounce her distruptive supporters because she needs money from them to pay off her campaign debt. She'll make more in fundraising off of people she can still convince that she has a chance to win in spite of the odds: rake in the donations from desperate pissed off supporters unwilling to give up while while she spends as little as possible on actual campaigning.

    Let's face it: very few of us know how it feels to lose over $11 million on something we thought was a sure thing. It's gotta hurt on many levels and I don't think she'll walk away from this primary season until she at least makes up the amount she loaned to her campaign.

    As far as the RBC, Kagro, and Emtpywheels - I'll defer to them since I don't know jack, diddly, or squat about the rules. But I do suspect that even if by some miracle the vote is overturned, it's not going to make a bit of difference in Denver. Obama has proven he plans ahead and can handle the "vetting". Clinton, on the other hand, went "all in" with of the expectation of winning by super tuesday. She lost and has been flailing ever since. She's proven herself to be a short term thinker with bad judgement in advisors, and she's had difficulty in handling her "vetting". I believe the majority of supers are going to back Obama no matter what happens with Ickes.

    Ok, time for tea. Thanks for the diary, SD. :-)

    -6.88 -6.31

    "They're all crazy. They're all crazy except you and me. Sometimes I have me doubts about you." -- Garrett Fort

    by Spathiphyllum on Sun Jun 01, 2008 at 04:02:26 AM PDT

    •  Excellent point. (1+ / 0-)
      Recommended by:
      Spathiphyllum

      Let's face it: very few of us know how it feels to lose over $11 million on something we thought was a sure thing. It's gotta hurt on many levels and I don't think she'll walk away from this primary season until she at least makes up the amount she loaned to her campaign.

      And it's not just about the money.  Senator Clinton invested years time, work , and a lot of emotion in what she thought would be a "sure thing."  And yes, it's hard to let go when you get "this close," only to see it slip away.  It's especially hard in an election format, because it's all to easy to take the loss personally (I was rejected) rather than to see it as a contest where your opponent out-played (out-worked, out-thought) you.

  •  Lots of bang today, in observance of a wimper (1+ / 0-)
    Recommended by:
    Seneca Doane

    Very interesting read, but your overall point may be that none of this mattered, in terms of the final result. It was all a big show by the Clinton people to convey their tenacity to their supporters.

    On our side, the show's purpose was to demonstrate that we weren't interested in pressing the advantage too hard.

    So for me, the analogy was to a drama in which the hero shows mercy at the end to the would-be villian ... who acts out, nonetheless - not a legal proceeding in which one party arrives in the posture (pun intended) of an aggrieved adolescent.

    Because we all knew that the (ultimate) outcome was predetermined. This final act ended with a "bimper."

    And as long as we're discussing things in this apocryphal (sp?) style, let me suggest that the cry of anguish here is best not ignored, however shrill it may be.

    Perhaps "pay attention to us, we count" is the ultimate message.

  •  Harold Ickes is a leg biter - literally (4+ / 0-)

    one of my students who knows him very well has told his classmates that once when Ickes was in a contentious meeting, the person on the other side of the discussion leaned back and put his feet up on the table and Ickes reached down and bit him on the leg.

    Symptomatic perhaps of the man who was associated with two losing campaigns that were dragged out to the Convention to the detriment of the candidacy of the nominee, on behalf of Kennedy in '80 and Jackson in '88.

    Those who can, do. Those who can do more, TEACH! If impeachment is off the table, so is democracy

    by teacherken on Sun Jun 01, 2008 at 04:19:20 AM PDT

  •  Once again, why I love this site... (1+ / 0-)
    Recommended by:
    Seneca Doane

    Not a lawyer, so had only a vague discomfort with Kagro X's reasoning, based on the idea that the alternative to what was accepted by RBC was absurd--i.e., that Hillary get all Michigan votes, save for a few --subjectively determined--votes of the uncommitted.

    So which was the more/least offensive?  Which solution contributed more to the greater good, especially given the inscrutable motivations of MI voters?

    Your analysis helped clear that up for me!

    Thanks...

  •  Good Legal Discussion (1+ / 0-)
    Recommended by:
    Seneca Doane

    First, thank you for a good legal discussion of the Rules & Bylaws Committee decision.  And I agree that the RBC acted as a court of equity here.

    Note: For non-lawyers, courts of equity began as ecclesiastical courts in England.  For centuries, there were some aspects of life (such as criminal cases) that fell under the jurisdiction of law, and others (such as divorce) that fell under the jurisdiction of the Catholic Church.  When Henry VIII split with Rome over the issue of his divorce and created the Church of England, ecclesiastical courts became part of the state as courts of equity, "courts of the King's conscience."  Where no law governs, a court of equity can still fashion a remedy "in the interests of justice," applying principles of basic fairness, the "clean hands" doctrine (you can't ask for equitable relief if you helped cause the harm alleged), and other common-sense principles.  Under federal and state statues, U.S. courts are both courts of law and courts of equity.

    Regarding Michigan, the RBC considered three basic issues: (1) did MI hold a valid nomination contest; (2) if not, should MI be allowed to seat delegates; and, (3) how should those delegates be apportioned.

    The RBC concluded that Michigan's primary was not a valid nomination contest, because: (a) the RBC had previously decided it would not count; (b) relying on that, Senator Obama and others took their names off the ballot; thus, (c) MI voters did not have a full slate of candidates from which to choose.

    The RBC concluded that Michigan should be allowed to seat delegates, with each delegate having one-half vote (as in Florida) as required by the RBC's mandatory sanction rule.

    Given these conclusions, the RBC had to consider how to apportion those delegates.  Team Clinton wanted the delegate apportionment to conform to the primary results: 73 delegates (55%) for Clinton and the other 55 undecided and subject to wooing by either candidate.  But the RBC decided that this primary was legally invalid, as if it had not happened.  Team Obama wanted a 62/62 split, a seemingly neutral outcome; in fact it was not, as Senator Clinton had to make up ground, so an "equal" delegate split favored Senator Obama.

    The Democratic Party offers states three ways to select their delegates: primary election, caucus, and convention.  The Michigan Democratic Party offered the 69/59 compromise under the aegis of a state party convention.  So the RBC had to ask: Did the meetings in which this compromise was developed constitute a valid "state party convention?"

    The RBC's decision, by a 19-8 vote, was that yes, those meetings of the Michigan Democratic Party were a "state party convention," thus the 69/59 delegate split would be recognized by the DNC and those delegates seated at the national convention.

    If the decision is appealed to the Credentials Committee at the convention in August, this is the likely argument the RBC will present in support of its decision.  Is it "airtight?"  Legal arguments rarely are.  But I do think it's a sound argument.

  •  there's another rule (1+ / 0-)
    Recommended by:
    Seneca Doane

    "jerks and assholes get what they deserve in the end."

    You can only behave badly for so long before it catches up to you in the form of retribution from the people you've pissed off. Republicans are figuring this out to their chagrin, too. Hopefully Hillary will get the message finally.

    http://www.memphisdailynews.com/...

    People like Ickes aren't helpful to party building. Would you want to work with him on a committee, or hang out with him afterwards?

    No, end the drama. There's work to do.

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