Note: this is a revised version of an earlier post.
The comment, which was directed to this earlier post on this blog:
....
I don't really know or care what your formalistic obsession with DNC
Convention rules are, and I doubt other GULC professors will care
either. If you want to have a serious conversation about the role of
sexism in the campaign, I suspect you might find some Obama supporters
who are willing to have that conversation. But if you start by telling
your other profs that they supported Obama because he's black, or
because he's a man, or because he is hip, they won't respect you and
they won't listen to anything else you have to say.
My reply, with identification of the alum redacted:
Dear Mr. G.
Because you did not comment anonymously and shared your views frankly, I am taking the time to to let you know that I have read and considered them. Of course I disagree with your perspective on my position on President Obama: I believe I have criticized him when it is merited, not demonized him.
But as you note, beginning by telling somebody something they are not likely to agree with is not a very engaging way to begin a dialogue.
So, let me just say that the most interesting point you raise, in my opinion - lawyer to lawyer - is whether or not my expectation that the DNC abide by its own rules (which would have included not awarding any of Florida's or Michigan's delegates to then-Senator Obama, which meant he would not have entered the roll call ahead in the pledged delegate count or the popular vote count) is "formalistic". Legal formalism has a number of meanings; it is a contested term. One of the things it means is applying rules as if the substantive results are politically irrelevant. Since legal rules often have political impact, to do this with legal rules is sometimes criticized as missing that point, the point about the overlap between law and politics (how tight that linkage is or should be is another contested point.
That point is not relevant to the DNC's conduct. The DNC is a political institution, and nobody I know would deny the link between the Democratic Party and politics. The problem is that the Democratic Party acted, for whatever reason, without political integrity, comparably to FDR when he attempted his Supreme Court packing scheme. Let us assume that both FDR and the DNC acted from good intentions: each believing that if they changed established rules in order to get particular results this would be justified because the results would be good. The problem with what FDR did was that it showed an unwillingness to win his case for the New Deal through politics and suggested a profound disrespect for those who disagreed with him politically. The problem with what the DNC did is that it showed an unwillingness to allow the delegates to the convention choose the Democratic nominee and a profound disrespect for the millions of primary voters who did not share the DNC establshment's preference for a candidate.
These elitist, authoritarian measures violate the spirit of liberal politics, which actually depends upon self-commitment to norms interpreted non-instrumentally so as to make politics more than a game of might makes right. In the long run, I believe right makes an political institution mightier and might makes right weakens political institutions. FDR's courtpacking move brought in the original vogue for laws institutionalizing term limits. I believe these laws to be undemocratic, preferring, for political reasons, a self-enforced political-cultural norm about the number of terms that is appropriate. Likewise, I believe that ultimately the current Democratic Party has marred itself by showing that it is as unwilling to respect the franchise as it was during Jim Crow days or the Republican Party was in 2000.
Note to readers: Many have sent comments or private emails to lend moral support and advice about taking care about running against the majority view in the workplace, especially around this election. I believe I was misleading in my original post. I will only comment on the election and its meaning for the law school if I can do so courteously and if it seems at all worthwhile. But I appreciate, greatly every message of support and solidarity. Camaraderie among dissidents is alive and well.
As for the morning session of the faculty retreat ... I made the choice to, in the words of the Beatles, let it be. The panel includes two of three colleagues who will work in the new administration in high positions. One will be working specifically on climate change, two others in the department of justice. These colleagues are liberals and not among those who chilled the atmosphere of the law center during the election season. They would have worked in a Clinton administration and will do good and important work no matter what. Today is not the day to distract from their aspirations. There will be better occasions to raise the issues that distress me.
