Lopez Torres and the Democrats

With speculation mounting that party insiders known as superdelegates will decide who will be the Democratic Party's nominee for president, legal scrambling and political maneuvering is heating up. A member of the Democratic National Committee who managed Vice President Gore's presidential bid in 2000, Donna Brazile, is threatening to leave the party if superdelegates determine the outcome of the nominating contest between Mrs. Clinton and Mr. Obama. "If 795 of my colleagues decide this election, I will quit the Democratic Party. I feel very strongly about this," Ms. Brazile said on CNN, where she is a commentator. A Republican legal powerhouse , Theodore Olson, who represented George Bush in the case that gained him the presidency, wrote in yesterday's Wall Street Journal an oped piece citing the precedent of Bush v. Gore, and offering his services to aggrieved Democrats.

Our own contribution to this debate is to commend to the parties, and our readers, a case we've heard all too little about. For if the nominating fight among the Democrats ends up in the courts, the determining Supreme Court opinion may well be one that emerged from the clubhouse politics of Brooklyn, here in New York City, from a candidate for a Brooklyn judgeship, Margarita Lopez Torres. Denied the nomination of the Democrats, Judge Lopez Torres pressed her case all the way to the Supreme Court with assistance from the Brennan Center for Justice at New York University. She experienced some success along the way, winning backing from the judges who ride the Second Circuit. But at the high court, she was dealt a resounding defeat. In a decision issued just last month, the justices in New York State Bd. Of Elections v. Lopez Torres ruled 9-0 that, in essence, a party had the right to choose its nominees by what method it wants, however undemocratically it wanted.

And the court wasn't divided on the point. It was a 9-0 decision, supported by Justices Ruth Bader Ginsburg and Clarence Thomas and all the berobed sages in between. "A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform," Justice Scalia wrote in the opinion of the unanimous court. "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates."

They don't often pour constitutional cement that thick. Or to put it another way, if Senator Obama or Senator Clinton loses the Democratic Party's nomination as the result of some back-room maneuvering by party bosses, and the voters in primaries and caucuses don't end up choosing the nominee, the loser should not expect the Supreme Court to ride to the rescue. Parties and the people who run them, it turns out, have their own standing under the constitution.

If a presidential candidate is denied the nomination by superdelegates and does end up losing a court challenge, maybe after the dust clears the candidate will get together for a drink in Brooklyn with Judge Lopez Torres and Ms. Brazile and mull the formation of a third party or an effort to change the rules of the Democrats. In joining Justice Scalia's decision in the Lopez Torres case, Justice Stevens, joined by Justice Souter, wrote a short concurring opinion, quoting Thurgood Marshall, in saying "The Constitution does not prohibit legislatures from enacting stupid laws." Neither does it prohibit political parties from enacting stupid methods of choosing candidates.