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Susan Estrich: Changing the Minds of Superdelegates

I had to laugh last weekend watching New Mexico Governor and superdelegate Bill Richardson, who was everywhre endorsing Barack Obama, taking a moralistic stance on superdelegates respecting the will of the people.

Come again. Which people?

Would that be the people of his home state, who he will actually be “representing” at the convention, or the people of the 48 states that will be allowed to vote on the first Credentials Challenge, or the people of the 50 states who will be voting if Hillary ultimately has even one more vote than Obama on the question of seating Florida and Michigan?

High-minded moral questions about respecting the will of the people don’t usually lend themselves so easily to the multiple choice approach! Of course, the people of New Mexico handed Hillary Clinton a victory, as did the people of Massachusetts, which isn’t, and shouldn’t be, stopping superdelegates Bill Richardson and Ted Kennedy from casting their votes for Barack Obama.

If you do the math, you quickly come to the conclusion that neither candidate, barring some truly unexpected landslide, is going to win this nomination on the basis of pledged delegates alone. As the rules structure it, there is no “will of the people,” or at least not one strong enough to support a nominee. Unless you want to change the rules in the middle of the game, the fact is that it will be up to the superdelegates to do what they were put there to do: decide who is most electable, and cast their votes accordingly.

And who is the most electable of the two?

The truth is, who knows?

Hillary can point to her victories in the big states that a Democrat has to win in a general election, and raise the question whether, if Obama can’t win the support of Democrats in Ohio and Pennsylvania and New Jersey and California and Florida, how can he win a general election?

Under the Democrats’ system, you can pick up delegates in places like Wyoming and Montana, but you’re not likely to pick up electoral votes there. Hillary can also argue, and experience bears this out, that the less well known a candidate is, the easier it is for the Republican attack machine to destroy him.

What will the people who brought you the Swift Boats and Willie Horton do with Reverend Wright. I can just see the commercial: Opening up with the Reverend and his G-D America rant, then going to the announcer explaining how it was that Oprah quit the Church because she wanted no part of such attitudes, and Rev. Wright attacked her for it, then maybe a picture of Wright with Farrakhan and Qaddafi, then maybe Wright with the Obamas on their wedding day, and closing with something like, “It’s not a question of free speech. It’s not about religious freedom. It's about judgment, and whose you trust your future to.....”

Old news? That’s what the Kerry people said, the night I called from New York, where I was sitting in for Alan Colmes on the first day of the Swift Boat attack. Nobody cares about that stuff, they told me.

Wrong.

Of course, Hillary starts with higher negatives than Obama, or at least she did until this latest controversy. She gives conservatives more reason to vote than their own nominee, John McCain — the intensity of their dislike for Mrs. Clinton is certainly greater than the intensity of their affection for McCain. That’s why, until the Wright business blew up, conservatives were, quietly and not so quietly, rooting for, if not voting for, Mrs. Clinton to be the Democratic nominee.

Now, it’s not so clear. The problem is not that the superdelegates have to decide, but that making the case to them necessarily involves Democrats making the case against each other. Given that the issues this year favor Democrats, and that the two candidates, Clinton and Obama, are actually much closer ideologically than frontrunners usually are, the question for superdelegates largely boils down not to who should win, but who could lose, which is not the nicest conversation for Democrats to be having, particularly now that the Republican race is over.

OF course, talk is cheap. IF ultimatley the question is about winning and losing, then beyond talk, what matters is who wins and loses, and where.

If Clinton is going to beat Obama in the minds of superdelegates, she may also have to beat him in a place where he’s supposed to win. That’s not Pennsylvania, where Clinton is viewed as having a significant lead, but a state like North Carolina, where Obama was way ahead, then watched the race tighten up, and now is ahead, if you believe the polls, once again.

It’s no coincidence that Obama headed for North Carolina almost immediately upon leaving the beach. It could end up as the decisive battle. Especially, if he loses.

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published "Soulless," "The Case for Hillary Clinton," "How to Get Into Law School," "Sex & Power," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System" and "Making the Case for Yourself: A Diet Book for Smart Women."

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the "Blue Streak" column for FOXNews.com.

Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission. A woman of firsts, she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership. Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System" and "Dealing with Dangerous Offenders." Her book "Making the Case for Yourself: A Diet Book for Smart Women," is a departure from her other works, encouraging women to take care of themselves by engaging the mind to fight for a healthy body. Her latest book, The Los Angeles Times bestseller, "Sex & Power," takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea.