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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Perils of Superficial Political Analysis
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Friday, November 14, 2025
The Perils of Superficial Political Analysis
David Super
In the wake of the
Democratic capitulation to end the government shutdown, activists and
commentators called for retribution against those responsible. On a macro level, this is a mistake: those seeking to preserve our democracy
desperately need less, not more, internecine warfare. But it also invites mistakes on a micro level
because, without a deeper understanding of how Congress works, observers will
routinely misunderstand what votes and other public actions mean. Nothing could please our opponents more than
our taking “divine retribution” against our own – except our taking misdirected
divine retribution against our own. This
post examines a few prominent cases in which appearances are deceiving. In early 2022, at
the insistence of activists, Senate Majority Leader Schumer put a proposal on
the floor to end the filibuster. In
doing so, he blatantly violated Senate rules, which require a two-thirds
majority to consider such changes. Sen.
Schumer was prepared to treat the filibuster as extinct if he won a simple majority. He did not, with all Republicans and
Democratic Senators Joe Manchin and Kyrsten Sinema voting “no”. Activists
immediately demanded those two Democratic senators’ heads and hounded them out
of office. Purple Arizona elected a
different Democratic senator who is much more reliably progressive. Deep red West Virginia, however, easily
elected a Republican who did nothing to protect low-income West Virginians as Congress
marched to enacting the One Big Beautiful Bill Act this summer. In truth, at least
ten other Democratic senators opposed eliminating the filibuster. They (correctly) anticipated that Republicans
could regain trifecta control of the national government and would gut civil
rights, environmental, fair elections, and other legislation if the end of the
filibuster left Democrats powerless.
They would have voted to preserve the filibuster had their votes
mattered, but they went along with Sen. Schumer’s initiative to save them the
wrath of short-sighted activists fixated on ending the filibuster. As Congress was
considering the hideous One Big Beautiful Bill Act this summer, only one
Republican, Senator Lisa Murkowski (R-AK), made serious efforts to moderate its
effects on low-income people. By
striking contrast, Maine Senator Susan Collins was publicly mum about the bill. If she did anything significant behind the
scenes, I certainly did not hear about it.
Evidently, she had signaled to Republican leadership that she would vote
for the legislation if needed and was trying to avoid statements that could be
used against her when she did. Yet in the end,
Sen. Murkowski cast the superficially decisive vote for the bill while Sen.
Collins voted “no”. Why? Pretty obviously, they traded votes. Sen. Collins is up for re-election in purple
Maine; Sen. Murkowski is not up next election and represents a far more
Republican state. She voted for the bill
so that Sen. Collins did not have to – and collected a basket of carve-outs for
Alaska from some of the bill’s worst provisions. Activists railed against Sen. Murkowski, yet
it likely was Sen. Collins’s decision to provide the crucial vote for the
legislation if needed that pushed it over the top. Sen. Murkowski decided how the bill
would pass, not whether it would do so.
During the recent
government shutdown, Senator Josh Hawley (R-MO) introduced legislation to
reopen the Supplemental Nutrition Assistance Program (SNAP), which President
Trump had shut down in November to pressure Senate Democrats. Fourteen other Republicans quickly signed on
as co-sponsors. Naïve commentators
praised Sen. Hawley and his Republican co-sponsors for caring about the 42
million low-income people going without food because of the Administration’s gratuitous
cruelty. They were deceived. Those fifteen
Republicans, together with all forty-seven Democrats, would be more than enough
to pass the bill, even over a filibuster.
But neither Sen. Hawley nor any of his co-sponsors took any meaningful
steps to force Senate Majority Leader John Thune to bring the bill to the
floor. They could, for example, have moved
to pass it by unanimous consent and see if any senators had the nerve to object. They could have offered it as an amendment to
other pending measures. But they did
nothing. Why? Enacting the
Hawley Bill would have required reconvening the House of Representatives, which
had not held any votes since September 19.
House Speaker Mike Johnson was widely understood to be keeping the House
out of session because convening it would allow Representative-elect Adelita
Grijalva (D-AZ) to take her seat and provide the decisive 218th
signature on a petition to force a vote on releasing the Epstein files. Having to vote on such legislation would be
deeply uncomfortable for many House Republicans who do not want to anger the
Trump Administration but have encouraged supporters believing that the federal
government is protecting pedophiles. A
House vote on releasing the Epstein files – which surely would pass – would then
become awkward for Senate Republicans, who would come under stronger pressure
to bring the measure to the floor for a vote.
So burying the Hawley bill that they had co-sponsored was crucial to
saving themselves from an uncomfortable vote on the Epstein files. Signing onto it was merely a smokescreen to
deflect public anger over the Administration’s SNAP freeze. This week, activists
have been demanding harsh retribution against the seven Democrats and one
Democratic-caucusing Independent that voted for the continuing resolution that
ended the government shutdown essentially on the Trump Administration’s
terms. I share their disagreement and disappointment
with this action. But that list of eight
bears some scrutiny. Sen. Angus King
(I-ME) was never convinced about the merits of the shutdown and had been voting
to end it throughout. So had Sen. Catherine
Cortez Masto (D-NV) and Sen. John Fetterman (D-PA). (Progressives campaigned hard for Sen.
Fetterman to defeat another progressive in the primary and might consider how reliable
their assessment of candidates is.) With
air traffic control breaking down, and her fellow Nevada Democrat already
voting to end the shutdown, Sen. Jacky Rosen (D-NV) would have had trouble explaining
a continued “no” vote to constituents losing jobs in the tourism industry. The vote that
stands out to me is that of Sen. Dick Durbin (D-IL). He is quite progressive (although not
allergic to working with industry on some debatable initiatives). He is also the Democratic Whip, responsible
for maintaining cohesion in the caucus.
He has no history of casting major votes for President Trump. Why would he supply the crucial eighth
vote? Pretty obviously as part of
another swap. Sen. Durbin is not running
for re-election, and he almost certainly decided to take the heat for casting
this vote to allow a more vulnerable colleague who had decided to end the
shutdown to continue voting with their Party.
One or two of the other Democratic senators’ votes might have been swaps
as well. Finally, activists
have been enraged by the six House Democrats that voted for the continuing
resolution. This, too, is naïve. Speaker Mike Johnson had the votes to pass
the continuing resolution without them, even after losing two of his own
Members. (One of those two likely was
posturing, too.) These six represent some
of the most marginal districts in the House:
none got even 52% of the vote in 2024 except Rep. Henry Cuellar (D-TX),
whose district was savaged in the Republican redistricting. If these Members think their chances of keeping
their seats Democratic improve by casting irrelevant votes, activists with much
less information should stand back.
Speaker Johnson obviously did not believe any of them were solid
supporters of the continuing resolution or he would have allowed more of his
Members to vote “no”. Progressives’
problem is one of persuasion, not coercion.
We failed to persuade enough of the anti-Trump community of the wisdom
of the government shutdown, went ahead with it anyway, and experienced the
predictable collapse. Past efforts to
enforce purity have only swollen MAGA majorities. Forty solid votes plus fifteen gettable ones
is far better than forty-seven solid votes and two possibly gettable ones. (Who is the third-best Senate
Republican? I have an answer, but you
will not like it.) But even if
campaigns of retribution made sense, they would be doomed if angry activists with
a superficial understanding of Congress do not know where the crucial pressure
points are. @DavidASuper1
@DavidASuper.bsky.social
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Books by Balkinization Bloggers
Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024)
David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024)
Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024)
Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023)
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |