Thursday, May 29, 2008

Party Rules, Party Lawyers

In a different context, I once wrote about how lawyers seem to respond to codes or bylaws:
Whether attorneys with a strong technocratic bent can shift to a more ethical stance when facing ethical difficulties is ultimately an empirical, psychological question. It seems highly plausible, however, that at best black letter codes do little to stimulate genuine ethical deliberation and at worst actively discourage it.*
Having reviewed the recent memo from the D.N.C. staff attorneys and their assistants, sent to the members of the RCB in preparation for the May 31 meeting, I am as committed to what I wrote before as ever I was.

The D.N.C. lawyers' memo concludes that the the best the RCB can do for Michigan and Florida voters is divide those states 50/50 between Senator Clinton and Senator Obama.

The analysis is very technical. It construes language, it specifies facts, it covers the scope of the RCB's authority. And then it delivers a conclusion that the RCB can hide behind should they do anything other than seating Michigan and Florida's delegations in full and as the voters in those states voted. This could be convenient for the RCB because then they can say, "Well, our lawyers made us do it. The most we could possibly do is split the delegates 50/50. Our lawyers made us."

  1. As every lawyer with a client knows, no lawyer can make a client do anything.
  2. And as every skilled lawyer knows, with as many provisions and facts in play in the current situation confronting the RCB, any lawyer could persuasively argue that the RCB should seat the delegations fully and representatively.
  3. As every in-house lawyer knows, one's "client" (in this case the R.C.B., a committee of the D.N.C.) prefers advice that will kerfuffle as few feathers as possible. Given the mess the D.N.C. has gotten the party into, recommending a 50/50 split might seem appealing to D.N.C. lawyers because it does not require them to take into account the full measure of the situation. That is, the lawyers can say, "The D.N.C. codes and bylaws made us do it."
Further objection:
  • As every skilled lawyer knows a code cannot make a lawyer recommend anything if the case being decided is a hard one. It is precisely when unexpected and difficult situations arise that rules written for everyday use lose their grip. That does not mean that lawyers have to.
At the moment, I feel sympathy for the RCB members. Since nobody else in the D.N.C. wants to take responsibility for bravely heading off a situation where the Party runs its best candidate against John McCain (and how ridiculous is it that one must exercise bravery to make a legitimate choice!), it now falls to the RCB to take a stab at the problem. In Denver it could be the credentials committee, but Denver is a long way away.

One word of consolation to the RCB: I assure you that should you decide to seat Florida and Michigan as the voters voted, there will be no shortage of top-flight lawyers who will defend your decision. It won't even be hard. As a friend likes to say, a pro could it with one hand tied behind her back, while eating a ham sandwich.
*Heidi Li Feldman, Codes and Virtues: Can Good Lawyers be Good Ethical Deliberators, 69 S.Cal. L. Rev. 885 (1996).


Anonymous Anonymous said...

IMO, The MI/FL situation is not important to the Clinton campaign. The nomination is not going to be decided by the "numbers" but, as has been the case all along, by internal DNC politica. The only important decision for the Clinton campaign is taking the nomination to a vote in Denver. The Obama campaign is a slow motion train wreck and 2+ months is an eternity in politics. Unless Obama self destructs, Hill can't win.


May 29, 2008 at 11:14 AM  
Anonymous Anonymous said...

Steve, you're contradicting yourself: if the nomination is going to be decided by "internal DNC politica", then it doesn't matter if Hillary takes it to the convention or not, since the DNC has been in the tank for Obama all along. What WILL decide it depends on whether or not (and how soon) the delegates - who are separate from the DNC - see the light and choose the candidate who actually represents Democratic Party principles and voters, who is able to win in the fall, and who will be able to get things done once in office (i.e. Hillary).


[Sergei Rostov]

May 31, 2008 at 12:40 AM  

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