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Susan Estrich: Who Will Win?

"We'll know it when we see it," Geoff Garin, one of Hillary Clinton's top political advisers said last week, in describing just how "close" she might come to Barack Obama in the contest for pledged delegates and the popular vote by the time the season — or maybe this year, it should be called the pre-season — of primaries and caucuses ends on June 3rd.

That is, of course, just about word for word what the late Supreme Court Justice Potter Stewart so famously wrote in an effort to define the line between constitutionally protected speech and obscenity subject to criminalization.

It's a famous way of saying, who knows?

The fact is that this nomination is not going to be decided by the pledged delegates, at least not unless the Democratic National Committee Rules and By-Laws committee changes course at its meeting at the end of this month and decides to seat some or all of the delegates Hillary "won" in Florida and Michigan.

The math just doesn't work.

That means the key to the nomination will be the "superdelegates," the unpledged party leaders, elected officials, and assorted hacks and has-beens (I say this with great fondness, since I used to be one, by the way) who were put in place as automatic delegates precisely because the party, stung from a series of defeats unbroken only by the election of the then-much maligned Jimmy Carter, was convinced that too much small "d" democracy every four years, particularly as dominated on the grass roots level by the "crazies" (excuse me, the feminists and the gay and the minorities and the rest of my crowd) was leading the grown-ups in the party to view the convention as a must-miss event and the patients who were taking over the asylum to choose candidates who shouldn't be nominated and couldn't win.

Nearly a decade after the party went down to defeat under the banner of George McGovern, considered the prototype of the sort of candidate who should never have been nominated, and was selected at a convention largely run by the left and largely boycotted by the responsible elders, the then Rules Commission (with yours truly leading the fight in opposition, complete with the slam that we were creating an elitist category of yes, "superdelegates," as I called them) ultimately adopted as a "reform" proposal that was intended to ensure that there be no more McGoverns, no more grass roots supported, unelectable nominees who represented the preferences of the ideologues who dominated, especially in caucus states, rather than the swing voters who would be needed in the fall election.

I have to laugh every time I hear someone complain that "superdelegates" are un-democratic, or that they should be bound by the popular vote, even if the popular vote, as reflected in caucus results, represents about 4 percent of all Democrats.

Where were you folks when I needed you, when Maxine Waters and I were going down in flames fighting the effort to take the nomination away from the people and bring back the back-room boys?

In the years since, as the number of unelectable nominees supported by the ideologues has increased, so has the number of superdelegates. What started out as a proposal to get congressmen and senators and governors back to the convention, and the table, was not surprisingly expanded by the Democratic National Committee itself to include, yes, themselves. That's how I made it in the room. Hotel room, floor pass, party invitations, and yes, a much desired vote, all yours for the being. All ex-party chairmen. I wonder who came up with that?

Do these people deserve to control the nomination?

Maybe.

If you think the purpose of all these primaries and caucuses is to build the party, empower the grass roots, and celebrate democracy, then the answer is and should be no.

But after a few decades of campaigning, too many of them for candidates who probably never had a chance of winning, I'm convinced that the other purpose is the one that should dominate.

Winning.

The role of superdelegates is not to vote for the candidate who has shown the greatest popularity among the grass roots activists who dominate this season, particularly in caucus states.

It's to pick the one with the best chance of winning.

The goal here is to elect a president, not select a nominee.

If we wanted a perfect democracy, we could have a national primary, or at least a series of regional primaries.

The superdelegates are a check, a fail-safe, a second look to make sure that the first choice of the voters is the best choice for the party. Most years, it doesn't matter. Most years, it's just a free pass to the convention. But this isn't most years, and this year, the superdelegates have to earn their way. Or their seats. When will enough of them decide to put one candidate over the top? Who knows? We'll know it when we see it.


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.