Introduction

In Asymmetric Constitutional Hardball, Professors Joseph Fishkin and David Pozen offer a compelling argument, connecting the legal literature on “constitutional hardball” with the political science literature on asymmetric polarization. “For a quarter of a century,” they contend, “Republican officials have been more willing than Democratic officials to play constitutional hardball . . . . Democrats have also availed themselves of hardball throughout this period, but not with the same frequency or intensity.” They argue that “[t]his partisan gap is in some ways analogous to the phenomenon of ‘asymmetric polarization’ that social scientists have documented” and “suggest that the two phenomena are intertwined.”

Professor David Bernstein responds to their essay with three main points. First, government shutdowns—some of Fishkin and Pozen’s main examples of Republican constitutional hardball—are the fault of both parties and predate the 1995 Bill Clinton–Newt Gingrich hardball. Second, he offers more examples of President Obama’s hardball than Fishkin and Pozen presented. Third, he takes an extended dive into President Obama’s nuclear agreement with Iran as a “particularly important” and “aggressive” kind of constitutional hardball.

This Reply to Bernstein first responds to each of these points directly, questioning some of the factual bases and interpretations of these events. This exchange exemplifies some of the challenges inherent in the discourse about partisan retaliation and tit-for-tat hardball. Each side can recite its grievances and give its own weight to them. Fishkin, Pozen, and Bernstein can each be questioned for which examples they categorize as hardball, the weight they give particular episodes, and what they omit. But Bernstein’s reminders about how Clinton and Obama played hardball miss Fishkin and Pozen’s point about reciprocity with asymmetry: Both sides are playing, but Republicans play hardball harder. A closer look at Bernstein’s examples, and his omissions, helps confirm Fishkin and Pozen’s argument.

Fishkin and Pozen acknowledge the “considerable” methodological challenges of studying chicken-and-egg escalation, both in terms of historicizing it and of measuring it objectively. Their essay’s goal was not to produce a definitive method of quantifying constitutional hardball or documenting its historical progression. The lived experience of the past three decades is probably sufficient to show that Republicans have played more aggressive hardball than Democrats. But if there is only one category of hardball, it’s hard to debate competing partisan claims. My Reply intends to move the ball forward on hardball debates because sometimes the “hardball” metaphor falls short at the warning track.

In baseball, “hardball” is an aggressive but legitimate style of play: pitching inside, sliding hard, hard tags. All are part of the game. Mark Tushnet’s original article introducing the “hardball” metaphor referred to “brushback” pitches intended to intimidate (but not strike) the batter, a legitimate, classic hardball tactic. But then there is beanball: throwing fastballs at batters’ heads not just to brush back but to injure, to get retribution, or to knock the player out of the game. Beanball may happen, but it’s against the rules, it’s wrong, it’s illegitimate, and it tends to lead to bench-clearing brawls. Much of what Fishkin and Pozen are debating with Bernstein are examples of hardball, but some of the debate is more helpfully categorized as a difference of kind rather than degree. Some hyperaggressive tactics are more like rigging the game or injuring the opposing players. What goes beyond hardball, becoming instead constitutional beanball? I suggest that political tactics that are fundamentally antidemocratic constitute beanball.

In baseball, the term “beanball” is not used as a subset of hardball. Teams playing hardball are not penalized, and they earn praise by most fans of the sport. But pitchers who deliberately throw beanballs are immediately ejected and fined. Some fans might praise their own pitchers’ beanballs out of a sense of grievance or retribution in a specific rivalry, but such tactics are generally not respected by neutral observers or opposing fans. Similarly, one political party might praise its own leaders’ extreme tactics, but when they cross the line into disenfranchisement, neutral observers would not defend them. The baseball analogy that brings these themes of beanball and politics together is the scene in the film 42 when Jackie Robinson bats against Fred Ostermueller. Ostermueller, with racist intent, hits Robinson in the head to knock him out of the game. Some political tactics similarly intend to knock voters out of the game. Other sports metaphors could include flagrant fouls, targeting the head, a game misconduct, or a red-card foul. But let’s stick with baseball.

Over the past several decades, Republicans have more frequently engaged in antidemocratic beanball, both by making voting more difficult for targeted groups and extreme gerrymandering. One might add the stigmatization and marginalization of racial minorities and the abuse of the Department of Justice (DOJ) for partisan prosecutions and protection along party lines. It is also worth noting times when leading Republicans such as President George W. Bush, and presidential nominees John McCain and Mitt Romney, admirably have refrained from hardball and beanball. Unfortunately, more recent history has been marked by a resurgence of beanball. Identifying Republican beanball as a recurring practice over at least the past three decades, and perhaps longer, demonstrates that the antidemocratic tactics of Trumpism are not a break from the establishment Republican Party; rather, they are continuous, if only more extreme.

My Reply is not meant to serve as a neutral umpire to referee these pieces (sorry). Nor does my Reply try to fully document this historical beanball claim. Rather, it sketches out these themes and points toward some evidence for reframing this debate. Part I evaluates Bernstein’s claims about Democratic hardball, suggesting that he does not take seriously the asymmetries in the history of government shutdowns or in the more aggressive Republican hardball tactics during the George W. Bush, Obama, and Trump Administrations. Part II fleshes out the concept of constitutional beanball and provides examples of the Republican Party engaging in such tactics. The bottom line is that Republicans have been more likely to engage in both hardball and beanball over the past few decades. Fishkin and Pozen highlight some structural reasons as well as some cultural and historical sources for this dynamic, citing historian Richard Hofstadter. I conclude by examining Hofstadter more closely on the paranoid politics of historical entitlement, dispossession, and racial status anxiety.

I. Taking Republican Asymmetries Seriously

This Part evaluates Bernstein’s examples of Democratic constitutional hardball in light of Fishkin and Pozen’s thesis that the two parties play hardball asymmetrically. Section I.A reexamines the history of government shutdowns and questions Bernstein’s characterization of them as a constitutional hardball tactic used by both parties. Section I.B recounts some of the unprecedented forms of Republican hardball the Obama Administration encountered throughout its existence. Section I.C discusses the Obama Administration’s nuclear agreement with Iran, the example of Democratic constitutional hardball that Bernstein illustrates with greatest specificity, and suggests that the Obama Administration’s hardball in this arena appears far less egregious when contextualized with the Republican hardball that preceded and followed it.

A. Government Shutdowns: Details and Context Matter

The timing of these essays is remarkable. As I write, a historic government shutdown has only recently concluded. And government shutdowns are the subject of Bernstein’s first critique of Fishkin and Pozen’s thesis. Bernstein writes: “The authors seem to believe that shutting down the government is something Republicans—but not Democrats—are inclined to do.” He asserts that both sides are to blame: “[I]f the President and Congress are unable to reach a compromise that would lead the President to sign a spending bill passed by Congress, both the President and Congress played constitutional hardball to shut down the government.”

But Fishkin and Pozen explicitly acknowledge that the Democrats triggered their own shutdown over the Deferred Action for Childhood Arrivals program (DACA):

In January 2018, Senate Democrats took the once-unthinkable (for Democrats) step of shutting down the government in a bid to prompt legislative action on the Deferred Action for Childhood Arrivals program that the Trump Administration had announced it would end. Yet to the dismay of their activist base, the Democrats “collapsed and accepted the Republican terms for reopening the government” within three days.

Bernstein does note that Fishkin and Pozen refer to the January 2018 shutdown. But, recall that Fishkin and Pozen do not argue that only Republicans play hardball, nor do they argue that Presidents Clinton or Obama avoided hardball. This is a helpful moment to remember Fishkin and Pozen’s thesis. They do not argue that only Republicans play hardball, nor do they argue that Presidents Clinton or Obama avoided hardball. Rather, Fishkin and Pozen recognize that “[c]onstitutional hardball remains reciprocal but not symmetrical,” and that while “[Republican officeholders] appear to have a dominant market position” on constitutional hardball, they “clearly have no monopoly.” Fishkin and Pozen highlight partisan escalation but emphasize its asymmetric dynamic. Bernstein is right to raise episodes of hardball that Fishkin and Pozen overlook or understate, but these reminders are not enough to overturn the balance of Fishkin and Pozen’s interpretation.

Bernstein’s own interpretation of the history of government shutdowns is a stretch. Bernstein observes that both sides bear responsibility for any shutdown; it takes two to tango. He also criticizes Fishkin and Pozen for “ignoring the Reagan and Bush shutdowns.” Let’s first take a closer look at those shutdowns. Before new DOJ interpretations of the Antideficiency Act in 1980 and 1981, the failure to pass a budget or a funding bill did not necessarily lead to a shutdown. They often had no real-world effect because the departments and agencies kept running. Bernstein then points to a “four-day shutdown” in 1981 and claims, “During the remaining Reagan and Bush years, the government shut down eight times after congressional Democrats refused to agree to the budgetary or policy demands of the Republican President.” But Bernstein omits just how short each of these mini-shutdowns were. In fact, the 1981 shutdown lasted just two days, not four, and the resulting worker furlough was actually just one day long. The 1982 shutdown, the first in Bernstein’s list of the additional eight, lasted just one day, and it doesn’t fit Bernstein’s description because it was an accidental shutdown resulting from scheduling conflicts with social events and fundraisers. The remaining seven shutdowns under Reagan and Bush Sr. were not accidental, but they were remarkably short: three, three, two, one, one, one, and three days, respectively.

These shutdowns were so short and minor that when the New York Times wrote a “Looking Back” article on past government shutdowns as the Clinton–Gingrich shutdown loomed in 1995, it included only four of them described as times when “some Federal workers were sent home.” Funding gaps do not necessarily lead to furloughs or shutdowns with real-world impact. Notably, the “Looking Back” piece was one of the main sources for the article that Bernstein relied on for his shutdown history. It is helpful to read the full article for context—and note how short it is:

Since 1981, the authority of Federal agencies to spend money has lapsed nine times after the Oct. 1 start of the new fiscal year. The gaps have ranged from a few hours to four days. On four occasions, some Federal workers were sent home. NOV. 23, 1981—President Ronald Reagan, in a struggle with Congress, ordered the furlough of 241,000 of the Government’s 2.1 million employees, those deemed nonessential to protect life, national security or Federal property. This was the first time a chief executive had ordered so large a shutdown of Federal operations. The Subcommittee on Civil Service of the House Committee on Post Office and Civil Service estimated that the one-day furlough cost taxpayers $80 million to $90 million in back pay and related expenses. OCT. 4, 1984—An estimated 500,000 of the Government’s 2.8 million civil servants were sent home at midday because Congress failed to approve a stopgap money bill. The furlough lasted half a day, and workers were back at their desks the next day. Back payments for the furlough were estimated at $65 million. OCT. 17, 1986—At midday, the Government sent home 500,000 workers, all classified as nonessential, because Congress failed to pass a spending bill to keep their agencies running. Again, the furlough lasted only half a day. The time off was estimated by the House panel to have cost taxpayers more than $61 million in lost work. OCT. 6, 1990—The shutdown started on the Saturday of the long Columbus Day weekend. For three days the Statue of Liberty, national parks and museums were padlocked, but plans to send most of the 2.4 million Federal workers home on Tuesday, Oct. 9, were scuttled after Congress and President George Bush completed a budget deal before dawn. The General Accounting Office found that the estimated partial costs for the shutdown were $1.7 million.

That’s it. When the New York Times reviewed the history of these “shutdowns” for actual furloughs—periods when government workers were sent home—it found a grand total of one day, two afternoons, and a long weekend.

Why did the New York Times find only four furloughs if there were nine funding gaps as part of 1980s–1990s budget impasses? Media bias? No, it seems that short funding gaps are often not shutdowns at all. Consider the reporting on government closures during the 2018–2019 shutdown. According to Politico, federal departments and agencies did not actually run out of funds to continue their services for over a week. For ten days, departments “limped along on leftover money, coasted through the quiet days of the holidays and paid staff with checks already prepped before the lapse.” Only in the New Year did the shutdown “get[ ] real” :

Many of the departments and agencies hit by the shutdown, which began Dec. 22, have reached a breaking point in their ability to go on with minimal disruption. They are running out of carryover cash and time to prep checks for the mid-month pay period during the lapse . . . . . . . . All the while, federal workers are left wondering whether they will get their next check on Jan. 11. While paychecks for federal employees went out last week after a pay period ended on Dec. 22, the pay period for that next check ends Saturday, and pay processing time varies from agency to agency.

In light of these accounts, it makes sense that Fishkin and Pozen did not include these minor events—essentially a snow day, two half-days, and a long weekend—as examples of “hardball.”

But even if they are included, these shutdowns still undermine Bernstein’s claims. Bernstein’s view of these shutdowns is that they are all bipartisan. It takes both Congress and the President—and effectively, both parties—to tango: “At a minimum, if the President and Congress are unable to reach a compromise that would lead the President to sign a spending bill passed by Congress, both the President and Congress played constitutional hardball to shut down the government.”

However, this is not how shutdowns actually play out, practically, politically, or legislatively. When the President and Congress reach a budget impasse, the conventional next step is to pass a continuing resolution to keep the government funded at the status quo—to extend the same budgeting while budget negotiations continue. Every once in a while, one side says, “No, no continuing resolution unless we get X, a change in the status quo.” Practically and politically, the side that rejects the continuing resolution status quo because of a demand to change the status quo is the side bearing more responsibility for the shutdown. In the 1980s and 1990s, Presidents Reagan and Bush were generally seeking changes to the status quo in terms of budget cuts, but Democrats often had their own demands, too. Both sides usually shared responsibility, and each impasse was resolved quickly with minimal furloughs, if any. There was not much hardball.

But the shutdowns of the 1990s and the twenty-first century have been different. In 1995, Gingrich and Senate Majority Leader Bob Dole passed not a status quo continuing resolution but rather one that increased Medicare premiums, deregulated the environment, and included a bal­anced budget requirement. Clinton held out for the status quo and clearly would have signed a status quo continuing resolution. The two Gingrich–Clinton shutdowns, lasting a total of over five weeks, were far more significant than any shutdown that came before them. And they were more the result of Gingrich, Dole, and congressional Republicans’ strategy of taking this unusual step: hardball. Yes, Clinton vetoed Republican spending bills, but he forcefully spoke out against shutdowns. Of course, the norm of negotiating while passing continuing resolutions maintains the status quo, but the continuation of the status quo is the nature of norms and conventions generally while changing the status quo is the nature of hardball. Clinton sought to preserve the status quo substantively and procedurally (that is, no shutdowns), while Gingrich was seeking to upset the status quo substantively and procedurally with the first meaningful and extended shutdown in American history. That is consistent with the Fishkin and Pozen thesis.

Digging a bit deeper, Clinton played a kind of hardball against shutdowns in 1996. When Clinton gave his 1996 State of the Union speech months after the Oklahoma City bombing, in which right-wing extremist Timothy McVeigh killed 168 people, Clinton introduced Richard Dean, a Vietnam War veteran who worked in the federal building and rushed back in four times to rescue those trapped inside. To widespread applause, Clinton continued:

But Richard Dean’s story doesn’t end there. This last November, he was forced out of his office when the government shut down. And the second time the government shut down, he continued helping Social Security recipients, but he was working without pay . . . I challenge all of you in this chamber: Never, ever shut the federal government down again.

Clinton was implicitly signaling a link between the terrorist’s extremism and the Republican shutdown’s extremism. That’s political hardball, but not constitutional hardball. Since it was also more of a hint than a direct link it does not constitute beanball.

The 2013 shutdown involved a similar dynamic: House Republicans were able to get Senate Majority Leader Harry Reid and President Obama to compromise closer to the Republican budget numbers. But Senator Ted Cruz and the “Tea Party” House members (later, the Freedom Caucus) blew up the deal in order to play hardball on defunding the Affordable Care Act (ACA) (also known as “Obamacare”). They were obviously never going to succeed, but the Tea Party wing was somehow able to convince Speaker John Boehner and the rest of the House Republicans to shut down the government for half of October. The capacity of the Republican Party’s right-wing backbenchers to have this level of control over party leadership in 2013 confirms Fishkin and Pozen’s understanding of hardball.

Democrats were more responsible for the January 2018 shutdown because they were pushing for the change in the status quo in seeking immigration reform measures and protections for DACA recipients. But this shutdown lasted only from a Saturday through a Monday, effectively constituting just a one-day furlough. And the Democrats essentially folded without winning any concrete concessions. So much for hardball.

The 2018–2019 shutdown is clearly the result of Trump playing hardball. He rejected the status quo of continuing resolutions in favor of funding for a wall on the U.S.– Mexican border. As Trump told Senate Minority Leader Chuck Schumer and then-House Minority Leader Nancy Pelosi, “I will be the one to shut it down. I’m not going to blame you for it.”

One more historical point: Bernstein actually did not go back far enough. In 1879, as a result of ex-Confederates in Congress trying to force out the remaining federal troops and end protections for African Americans in the South after Reconstruction, the federal government faced the very real threat of a shutdown. Historian Heather Cox Richardson writes:

In 1879, ex-Confederates in Congress, desperate to turn the direction of the nation, refused to fund the government unless the Republican president promised to abandon his party and do things their way. Republicans then saw the situation for what it was. “If this is not revolution,” House Minority Leader James Garfield concluded, “which if persisted in will destroy the government, [then] I am wholly wrong in my conception of both the word and the thing.”

In the end, President Rutherford Hayes refused to capitulate to the racist Southern ex-secessionists and the Democrats caved. This shutdown fight followed the same pattern, with one side trying to use shutdowns to change the status quo—in this case, the pro-South Democrats. They shouldered the blame and they failed.

At what point can shutdown tactics cross over from hardball to beanball? The Democrats of 1879 were playing beanball by using shutdowns for racist and secessionist—fundamentally antidemocratic—goals. If a shutdown is motivated by a desire to sabotage the government itself—perhaps to make an ideological point about minimizing the size and scope of the federal government, or alternatively with racist purposes lying behind either symbolic or concrete goals —it is beanball.

In the big picture, after recognizing the 1981–1990 period for the minor preview that it was, we now have three extended Republican shutdowns (1995–1996, 2013, and 2018–2019) compared with one Democratic shutdown lasting a single day (2018). Trump’s backing down from a shutdown and instead declaring an emergency for the wall is consistent with this interpretation for which side was responsible for escalating the conflict, but as I discuss below, the emergency declaration is constitutional hardball, not beanball.

B. Obama Versus the Tea Party on Shutdowns, the Debt Ceiling, and Birtherism

Bernstein’s response highlights President Obama’s engagement in hardball, and indeed he raises some good examples. But these examples actually underscore the reciprocal nature of constitutional hardball without undermining Fishkin and Pozen’s thesis that while both parties play hardball, the Republicans have played harder—asymmetric constitutional hardball. Obama’s hardball can be understood only in the context of Republican escalations of both hardball and beanball.

Bernstein offers some noteworthy examples of Obama’s hardball. Particularly intriguing is the Obama Administration’s nonexecution of statutes, from delays and waivers of ACA provisions, and the implemen­tation of DACA, to refusing to defend the Defense of Marriage Act in court. New research shows that discussion of the “faithful execution” language in the Constitution’s Take Care Clause and the presidential oath has overlooked the language’s origins in English and colonial history that raise new questions about whether a President can ignore and categorically not enforce statutes. However, Obama is certainly not the first or last President to have a nonexecution problem. The rapidly increasing use of presidential signing statements from Reagan, Bush Sr., Clinton, and Bush Jr. raised this concern, and Trump’s nonexecution of the ACA has escalated it.

Bernstein offers long passages from Obama’s Cabinet meetings and 2014 State of the Union address in which the President signals that he will use “executive orders” and “administrative actions” to promote his policies, “if Congress won’t act soon.” But there was nothing unusual in these comments. Obama wasn’t threatening in these examples to ignore or disobey Congress or to go beyond statutory authorization. These speeches reflected basic, conventional governance in the post–New Deal admin­istrative state. If Bernstein thinks these are examples of hardball, then he probably regards the entire bipartisan construction of the administrative state over the past century as constitutional hardball. But then why single out Obama for blame?

Bernstein offers other examples of Obama Administration hardball which actually pale in comparison to Republican hardball tactics in those very same spheres. For example, Bernstein discusses politicized hiring in DOJ’s Civil Rights Division under Obama but fails to mention George W. Bush’s far bigger DOJ scandal, the firing of U.S. Attorneys for insidiously partisan reasons. In 2006, nine U.S. Attorneys were relieved of their duties. Attorney General Alberto Gonzales and other White House officials were alleged to have fired four prosecutors for investigating Republican politicians and two others for not investigating Democratic politicians. Although a report by DOJ’s Inspector General did not definitively identify political retaliation as the reason behind the firings, it noted gaps in the investigation because of the White House’s refusal to turn over internal documents or to allow certain officials to be interviewed, and concluded that there was “significant evidence that political partisan considerations were an important factor” in the firings.

Also in 2006, U.S. Attorney Steven Biskupic prosecuted Georgia Thompson, a career civil servant in Wisconsin, for allegedly steering a state contract to a travel agency owned by supporters of Democratic Governor Jim Doyle. Thompson’s conviction for mail fraud and misapplication of federal funds became a centerpiece in the Republican campaign against Doyle. A year later, the Seventh Circuit Court of Appeals overturned the conviction, finding that the prosecution’s case was “preposterous” and without evidence, that the agency had submitted the lowest bid, that there was “not so much as of a whiff of . . . impropriety,” and that Thompson was “innocent.” The court ordered her immediate release. It turns out that in 2005, Biskupic had been on a list of U.S. Attorneys to be considered for firing, compiled by the U.S. Attorney General’s chief of staff, allegedly for not bringing voter fraud cases against Democrats. After Biskupic indicted Thompson, his name came off of that list. Bush and Gonzales’s hardball abuses of the DOJ were so egregious and such an abuse of power in relation to basic democratic values that they crossed the line over to beanball. And Trump makes those abuses look like wiffle ball.

Bernstein is right that Democrats engaged in hardball tactics by passing the ACA over a Republican filibuster, making recess appointments, appointing “czars” to avoid Senate confirmation, and fighting over filibusters on judicial nominees. But these hardball tactics were each a response to the Republican hardball of escalating the filibuster to new heights. Tit for tat. On this question there may be rough symmetry, although one might still note that Republican use of the filibuster became common in all spheres. And while Obama found three areas in which to circumvent the filibuster, he couldn’t, or wouldn’t, circumvent it elsewhere. Moreover, “czars” and recess appointments were not new phenomena. It is also notable how long Obama and Senator Reid took—five years—to address the filibuster of judicial nominees.

But on top of the filibuster, Obama had to deal with two other remarkable kinds of hardball: one financial, the other xenophobic. First, Republicans threatened not to raise the debt ceiling in 2011, threatening the United States with default on its debts. This was an unprecedented hardball threat that led to the downgrading of the United States’ credit rating and, if the Republicans had followed through, would have permanently damaged the American financial system. Obama could have circumvented Congress with constitutional hardball by relying on the Fourteenth Amendment, by asserting emergency powers to resolve conflicting legislation, or even by minting a trillion-dollar coin. However, he declined to go down that unprecedented path. Instead, he called the Republican bluff. It was one of the most striking episodes of hardball in the past three decades, and Fishkin and Pozen discussed it six times. Bernstein didn’t mention it once.

Obama also had to deal with a bizarre type of constitutional hardball: the birther conspiracy. It was a paradigmatic kind of constitutional hardball: weaponizing a clause of the Constitution, the “natural born citizen” requirement. But it was also oddball hardball, a delusional and baseless conspiracy theory driven by President Obama’s race, which made him an illegitimate “other.” It is also better understood as a kind of constitutional beanball, a tactic to delegitimize through appeals to racism. It started as a fringe conspiracy, promoted by the likes of Judge Roy Moore and later Sheriff Joe Arpaio but more establishment Republican politicians made it mainstream in 2009 with a mix of coy questions, hints, and validating off-hand comments, including vice presidential nominee Sarah Palin, then-Congressman (and now Senator) Roy Blunt, Senator Richard Shelby, Senator David Vitter, Congresswoman Michele Bachmann, Congressman Mike Coffman, and Newt Gingrich, among others. Then, of course, Donald Trump emerged as the Birther-in-Chief as his entry into American politics in 2011 and eventually rode that racist conspiracy theory to a racist presidential campaign. On the one hand, prior Republican presidential nominees John McCain and Mitt Romney admirably never made a major campaign issue of Reverend Jeremiah Wright, when it could have been a divisive racial theme. But in the 2012 election, at a time when birtherism was Trump’s sole political message, Romney sought out Trump’s endorsement—a validation of the birther message and a pitch for those racist votes. Romney was enthusiastic: “There are some things that you just can’t imagine happening in your life . . . . This is one of them. Being in Donald Trump’s magnificent hotel and having his endorsement is a delight. I’m so honored and pleased to have his endorsement.”

When John McCain was told by a voter in 2008, “I can’t trust Obama. I have read about him, and he’s not, he’s not uh—he’s an Arab,” McCain responded, “No, ma’am,” and immediately rejected such conspiracies. McCain might have won in 2008 with his own version of Willie Horton ads starring Reverend Wright, but he chose his dignity and legacy over an increased chance of victory.

But Romney did the opposite. He sought out the Birther-in-Chief for a coded, yet unmistakable, symbolic embrace of birther votes. It was un­acceptable at the time and is only more so in hindsight, as birtherism prefigured the Trump campaign’s white nationalist messaging. In doing so Romney wasn’t just playing aggressive hardball; he was playing illegitimate beanball. Obama had to overcome the unusual challenge of being delegitimized as an American while trying to govern as President.

In fact, the birther strategy had the effect of constraining Obama’s range of political options. He had to play nicer, given the stereotypes and the politics of race reinforced by this bad-faith conspiracy theory. One of the definitive critiques of Obama’s presidency by the left was that he did not answer the Republican hardball with hardball. But Obama’s critics on the right often want it both ways: They want to portray him as weak and soft, but also as a dangerous, nefarious, and lawless threat. I suppose one could be both, but it strains credulity to suggest Obama was a remarkably aggressive practitioner of hardball in this era. He was not only less aggressive than other Presidents before and after, he was less aggressive than his Republican opponents at the time.

C. The Iran Nuclear Agreement

Bernstein also has legitimate complaints about how the Obama Administration pursued the Iran nuclear agreement, the Joint Comprehensive Plan of Action (JCPOA), which Fishkin and Pozen did not address. Bernstein is correct that the Administration lied about the process and engaged in questionable spin and problematic tactics. But there are a number of problems with his analysis in this context. Again, Fishkin and Pozen acknowledge that Democrats play hardball but argue that they have not done so as aggressively as Republicans. Bernstein’s example of Obama’s most aggressive foreign policy hardball pales in comparison to the George W. Bush Administration’s lies about weapons of mass destruction in pursuit of the Iraq War, and to the string of lies and chaos in Trump’s foreign policy. The word “Iraq” does not appear in Bernstein’s piece, but the discussion of the JCPOA takes up eleven of his twenty-six pages. This seems like a highly selective complaint, one made without the context and comparativism that are the point of Fishkin and Pozen’s essay. One can certainly argue that lies in pursuit of a peace plan, while problematic, are not as egregious as lies in pursuit of war. It is remarkable that Bernstein focuses so narrowly on the Obama Admin­istration’s lies while ignoring the “asymmetric” lying of the Republican administrations immediately before and after.

The most constitutional of hardball questions the Iran agreement raises is whether the JCPOA should have been a treaty subject to Senate ratification; to Bernstein’s credit, he cites experts who say that it did not need to be. He also notes that Senator Tom Cotton and his Senate colleagues reacted dramatically:

By early 2015, some speculated that the Obama Administration’s plan was to get the United Nations Security Council to endorse a deal and then present the deal to Congress and the public as binding international law. This provoked Senator Tom Cotton to write an open letter signed by forty-seven Senators informing the Iranian government that any deal signed by Obama but not approved by Congress would not be binding U.S. law.

This letter was condemned from many quarters—sometimes hyperbolically as being traitorous or mutinous, but also with some valid concerns that it crossed the line legally. Some commentators cited the Logan Act, a statute that prosecutors have used only twice to indict someone, but a legal line nevertheless. Conservative columnist Michael Gerson observed:

If Republican senators want to make the point that an Iran deal requires a treaty, they should make that case to the American people, not to the Iranians. Congress simply has no business conducting foreign policy with a foreign government, especially an adversarial one. Every Republican who pictures his or her feet up on the Resolute Desk should fear this precedent.

Did Obama push boundaries in pursuing a nuclear nonproliferation agreement? Yes. But could he plausibly be accused of committing a crime? No. This is not to suggest that Republican senators should have been prosecuted. But it is remarkable that some mainstream commentators could entertain the question of whether Republican senators had committed a crime and that commentators across the political spectrum identified this act as a serious breach of foreign policy norms. Some of the critiques may have been hyperbole, but the Senate Republicans crossed a line, and their letter to Iran was indicative of the fervor, intransigence, and ideological opposition that help explain why the Obama Administration chose to hide, lie, and misrepresent parts of the process. Furthermore, it seems unremarkable that an administration would hide or lie about whether highly sensitive diplomatic negotiations were happening, especially when the opposition was engaging in such tactics.

Were the Republicans’ fervor, intransigence, and ideological opposition warranted? No, they were not. And was a nuclear agreement so urgent and necessary as to justify hardball tactics in anticipation of such ardent opposition? In a word, yes. The reasons for the urgency were so sensitive in diplomatic terms that any administration would need to hide them in order to get a deal done. And because of this sensitivity they have not been discussed widely in American media, but national-security and Israeli experts have explained how the international coalition for tight sanctions on Iran was inevitably dissolving. Reasonable people can disagree on this issue, but reasonable people should also acknowledge some often-overlooked facts forcing the Obama Administration’s hand.

This Reply is not the place to fully litigate the merits of the Iran agreement, but a brief sketch of the issues is necessary context to answer Bernstein’s complaints. The bottom line is that an international agreement initially put sanctions in place not because of Iran’s support of terrorism but because of its military nuclear program. Russia and China had been the most reluctant members of the coalition. Once Iran announced that it was willing to abandon its military uranium-enrichment program and accept frequent inspections the sanctions regime was not going to last. The choice the Obama Administration faced was between ineffective sanctions with essentially no inspections, on the one hand, or an internationally supervised inspection regime with rules for re-imposing sanctions on the other. Hardin Lang, a senior fellow at the Center for American Progress, and retired Israeli general Shlomo Brom, a senior fellow at the Institute for National Security Studies in Tel Aviv and a visiting fellow at the Center for American Progress, provide some behind-the-scenes realities:

[Myth:] The United States could have held out for a better deal. [Reality:] This is a strong deal, negotiated between the major world powers and Iran. If the United States walks away, the hard-won international consensus on current sanctions would crumble. Russia and China would reopen trade with Iran, circumventing American and European sanctions. Inspectors would be kicked out, and Iran would have no effective restrictions on its nuclear program.

Aaron David Miller, a former U.S. Middle East negotiator, now a vice president of the Woodrow Wilson International Center for Scholars, adds:

At best both the Russians and the Chinese never saw the Iranian nuclear program in as dire terms as the U.S. did. And the Germans were eager to resume their trade ties with Iran as well. Israel was reluctant to use force on its own. And the Iranian regime would have continued on its resistance economy—pain notwithstanding—unless it could justify a good deal for itself. In a galaxy far away, a better deal might have been possible, but not here on planet Earth and not under these circumstances.

The Obama Administration could not publicly blame its diplomatic allies in the midst of these sensitive negotiations. When Iran announced its compliance, the reality was that Russia and China were going to end their participation in sanctions, thereby ending the sanctions’ effectiveness and opening the door for other countries to drop sanctions too. Russia and China wanted access to Iranian oil, and Iran’s willingness to end its military nuclear program was sufficient excuse to get that oil. Moreover, according to some reports, Germany was also signaling it would back off of sanctions. The Obama Administration chose to be diplomatic in negotiating a new inspection regime, rather than publicly blaming Russia, China, and Germany. It would have been easy to score political points against these countries, but the blame game could have weakened or killed the deal. The choice for the Obama Administration was not the status quo sanctions regime versus a deal. The choice was either China and Russia ending sanctions and leaving very weak safeguards or an American-led deal with strong safeguards. The Obama Administration made a weak position stronger. In this context, more of the Obama Administration’s secrecy and even its lies and misrepresentations in the course of its international negotiations are understandable. And even though Bernstein is right that the Obama Administration played hardball, this episode doesn’t hold a yellow-cake uranium candle or a Russian oil flame to the misrepresentations of the Bush and Trump Administrations in foreign policy.

II. Constitutional Beanball

Some hardball goes too far and becomes antidemocratic. At that point, it becomes beanball: more than just an aggressive, yet legitimate, style of play. Beanball breaks basic rules by trying to eliminate the other players from the game.

The paradigmatic example is efforts to suppress voting and restrict ballot access. Once upon a time, beanball of this type consisted of formal disenfranchisement. Today, this form of beanball is less explicit, instead taking the form of voting rules designed to disadvantage the opponents’ voters. As Zachary Roth’s The Great Suppression documents, Republican officials openly talk about the good old days when the franchise was far more restricted. Congressman Ted Yoho of Florida in 2012, for example: “I’ve had some radical ideas about voting, and it’s probably not a good time to tell you about them . . . . But you used to have to be a property owner to vote.” Roth notes that this was the same state in which limited resources for casting and counting ballots led to the “recount fiasco” in the 2000 presidential election. I’d add that even though Florida officials made many mistakes and Florida state judges did not inspire confidence, the Florida recount in 2000 illustrated Republicans playing a mix of hardball and beanball more aggressively than Democrats in terms of providing resources for voting and actually counting votes. Those problems unsurprisingly recurred in the 2018 Florida races for Senate and governor. The scandal in North Carolina over stolen absentee ballots and in Georgia by gubernatorial candidate and Secretary of State Brian Kemp’s self-dealing show these problems tend to have a partisan bent and seem to be getting worse.

For the past three decades, Republicans have tried to make access to the ballot and counting votes harder, while Democrats have tried to make access and counting easier. Some of these efforts, while imprudent, are arguably theoretically legitimate. Many on the left criticize voter-identification rules, but in the abstract, such rules are legitimate, even if in-person voter fraud is only a myth. In our fragmented, distrusting social environment, some will doubt the validity of election results without voter ID rules. Voter ID helps to address those concerns and makes election results appear fair and legitimate. The inevitable problem is the leap from theory to beanball practice. In practice, Republicans have been turning voter ID and other new voting rules into the new poll tax. Republican state legislatures spread voter ID laws rapidly from 2004 to 2016, often with rules that specifically benefited likely Republican voters over likely Democrats. In Tennessee, for example, valid voter ID includes state-issued driver’s licenses, U.S. passports, military IDs, and handgun carry permits with a photo, but not college student IDs. Similarly, Texans can use gun permit licenses to vote but not student IDs. According to the Brennan Center for Justice, approximately eleven percent of American citizens do not have government-issued photo ID, with a disproportionate number of people of color, seniors, and young people lacking such documentation. Judge Richard Posner, who wrote the Seventh Circuit decision that upheld Indiana’s voter ID law, has since disavowed voter ID laws as a kind of “voter suppression.” Given that widespread, in-person voter fraud is a myth, it should not serve as a pretext for such vote rigging, even if voter ID legislation addresses some conspiratorial suspicions. The 2016 election had more widespread restrictions than ever, driven by a Republican agenda against ballot access.

Beyond voter ID, Republicans have several long-standing strategies to make voting more difficult in other ways. Republicans largely opposed the commonsense Motor Voter Act that would have made sense if their voter ID agenda was in good faith. Now Republicans employ a strategy of “voter caging,” purging from the rolls voters whose mail is returned as undeliverable. The Supreme Court, by a 5-4 vote, upheld this tactic—despite its lack of sufficient justification and all its obvious risks of selective enforcement. Republicans like Kris Kobach, Kansas’s former secretary of state, championed the Crosscheck system—which, by 2017, more than thirty states participated in—to challenge voter registrations by searching for duplicate names across different jurisdictions, ostensibly to hunt for fraud. However, “academics and states that use the program have found that its results are overrun with false positives, creating a high risk of disenfranchising legal voters.” As Crosscheck flagged names, communities with more common shared names, like African Americans, Latinos, and Asians, are dramatically overrepresented and run the risk of being disenfranchised. Even without Crosscheck, voter caging runs similar obvious risks of disenfranchising eligible voters. Georgia’s gubernatorial race in 2018 was the most notorious example of a white secretary of state, Brian Kemp, using these tools to rig an election over a black candidate, State Senator Stacey Abrams. The Georgia race also highlighted a widespread problem: Voting precincts serving more likely Democratic voters have worse technology, are less reliable, and have longer lines.

Republicans are also more likely to engage in, or reward, more direct minority-voter-suppression tactics. In a 2018 North Carolina congressional election, Republican operatives allegedly stole absentee ballots, with many of the apparent victims being elderly African American voters. In fact, the Trump DOJ had been given notice of such election fraud almost a year in advance, and did nothing to prevent it, all the while choosing to focus on in-person voter fraud propaganda and scaremongering about noncitizens voting. Remarkably enough, President Trump nominated Thomas Farr, one such former alleged beanball player from North Carolina credibly accused of racially disenfranchising scare tactics, to the federal bench, and he was almost confirmed.

Fishkin and Pozen acknowledge a counterexample: Democrats have their own election-timing strategies, sometimes preferring to schedule an election off cycle to advantage Democratic turnout operations. But they note this practice is rare and it “would be the sort of exception that proves the rule. Whatever their drawbacks, off-cycle elections do not actually block . . . anyone . . . from voting. If this is as far as Democrats will go, it highlights the limits of their use of hardball in the highly contested constitutional sphere of voting.” I would go further and say that a comparison of these tactics shows that Democrats are generally reluctant to play hardball with voting rules, while Republicans have enthusiastically been playing beanball. These voter suppression tactics are likely to get far worse in 2020, particularly now that federal courts have lifted a consent decree forbidding the Republican National Committee from engaging in voter suppression efforts, as Professor Rick Hasen explains. The consent decree was put in place precisely because the RNC has a history of such tactics. What’s past is prologue. RNC voter suppression is dead; long live RNC voter suppression.

Another example is extreme gerrymandering, more of a Republican project than a Democratic one. Yes, Maryland’s congressional seats were extremely gerrymandered, but for every Maryland, there is a Wisconsin, a Pennsylvania, and a North Carolina. As Fishkin and Pozen noted, Republicans broke norms in Texas and Colorado by redistricting and gerrymandering mid-decade in 2003. But Republicans stepped up their efforts with the Republican State Leadership Committee and its Redistricting Majority Project, known as REDMAP. Using a mix of computer programs and extreme partisanship, Republicans engaged in a national state-by-state strategy of extreme gerrymanders, starting in North Carolina and moving to Florida, Pennsylvania, Ohio, Michigan, and Virginia. As a result, Republicans entrenched themselves and effectively marginalized Democratic voters, so that even when Democrats won statewide by large margins, the Republicans would keep the state legislature or the majority of congressional seats. This is not legitimate hardball. This is indefensible beanball.

In the 2018 elections, voters in Wisconsin and Michigan replaced their Republican governors with Democratic ones. The Republican lame-duck legislatures then enacted a series of changes weakening the incoming governors and increasing the legislatures’ power. Wisconsin included measures to limit early voting to a two-week window, even though a federal court had previously found a similar move to be racially discriminatory. In a sign that some limits on hardball remain, Michigan’s outgoing Republican governor vetoed a bill that would have stripped some power from incoming Democratic officeholders around the same time New Jersey Democrats also backed away from their attempt to engage in extreme gerrymandering. Nevertheless, defeated lame-duck Wisconsin Governor Scott Walker did not exercise similar restraint.

These lame-duck power grabs are harder to categorize, but I’ll hazard to call them hardball rather than beanball. If separation-of-powers arrangements are set by legislation rather than being constitutionally enshrined, then the state constitution invites some of this hardball. Early voting is helpful, but it is not limitless. States may validly limit how early voters can submit their votes in order to ensure the public has a chance to deliberate. Two weeks of early voting seems to be an acceptable balance.

What else can be distinguishable as hardball versus beanball? Republicans denying Judge Merrick Garland a hearing during his Supreme Court nomination was hardball and yet not beanball. Senate Republicans legitimately had enough votes to block Garland, and they chose an aggressive, norm-busting tactic to maximize their chances to prevent any defections. It was unprecedented but not fundamentally antidemocratic to use their votes to block or delay a confirmation. To justify his extreme hardball, Senate Majority Leader Mitch McConnell falsely claimed that Presidents have not appointed Supreme Court Justices in presidential election years. McConnell’s willingness to make patently false historical claims indicates that he knew he was shattering norms. However, lying in politics is too common to be considered beanball. Similarly, confirming Neil Gorsuch to the Supreme Court by eliminating the filibuster was hardball, but not beanball.

But Brett Kavanaugh’s Supreme Court confirmation was an example of constitutional beanball. The stakes for democracy of rushing a lifetime confirmation—without legitimate vetting—are much higher than denying or delaying an appointment. The Trump White House and Senate Republicans prevented Senate Democrats from receiving full access to Kavanaugh’s records or full answers to troubling questions about his conduct during the Whitewater investigation, his time in the Bush Administration, or mysterious debts that were suddenly paid off. Republicans also sharply limited the investigation into multiple allegations of sexual misconduct. Even if Kavanaugh’s statements on these matters did not rise to the level of perjury, felony false statement, or other crimes, they surely warranted a more robust investigation and less stonewalling on records.

While it is common for political actors to play hardball with access to information and investigations, a nomination to a lifetime seat on the Supreme Court is a special case. The Supreme Court plays a unique role in American democracy because of its countermajoritarian function and the escalating importance of judicial review and judicial supremacy in the American political system. Confirmation hearings are the only chance to vet nominees for an office that will shape the United States for decades. Blocking valid investigations may be hardball in other contexts, but it was beanball in this context. These efforts to sharply limit inquiry and debate about a Supreme Court seat were antidemocratic and antideliberative—the result of a self-imposed deadline before the November election, a fear of public opinion, and an ardent refusal to consider another candidate because the country is stuck in a culture war.

The larger context surrounding the Supreme Court also matters. The Roberts Court has enabled beanball in its rulings upholding voter-ID legislation in Crawford v. Marion County Election Board, in favor of a voter-caging law in Husted v. A. Philip Randolph Institute, and striking down the Voting Rights Act’s preclearance protections in Shelby County v. Holder. The Kavanaugh confirmation solidifies a majority willing to open the door for beanball tactics.

Were Democrats playing hardball or beanball by releasing Dr. Christine Blasey Ford’s letter, despite her request not to release it? I will let others interpret that step in this episode.

As discussed above, the manipulations in George W. Bush’s DOJ, leading to the firing of nine U.S. Attorneys, was beanball, because the DOJ was misused for partisan purposes to prosecute the opposition, protect political allies, and crack down on voting access. Some of those prosecutions were warranted, some weren’t; but the partisan pressure was illegitimate and unacceptable. Presidents have often appointed crony attorney generals, but President Nixon took his cronyism to the level of beanball with his management of the DOJ through John Mitchell, Richard Kleindienst, and Watergate. Now we are seeing another Republican President play beanball with the DOJ. When Obama’s Attorney General Loretta Lynch crossed a line by meeting with Bill Clinton on the tarmac—even as Hillary Clinton was under investigation by the FBI for her use of a private email server while in office as Secretary of State—she announced she would accept the recommendations of career prosecutors and the FBI director rather than make the decision to prosecute herself. Trump’s November 2018 appointment of Matthew Whitaker as acting attorney general, on the other hand, may have been beanball, because Trump’s unprecedented appointment reflected an intent to impede investigations into the President and his associates and protect against indictments.

Government shutdowns and bogus emergency declarations to build a wall are hardball, not beanball. They do not fundamentally undermine democratic participation. But a slippery slope is a legitimate worry: One can imagine other emergency declarations that could be used to manipulate elections or abuse minority rights.

Conclusion

One of the most important insights in Fishkin and Pozen’s article was a discussion of something that preceded their timeframe of the past twenty-five years. They turned to Richard Hofstadter’s 1964 essay, The Paranoid Style in American Politics, written in the midst of the Barry Goldwater phenomenon. They observe that Republicans are engaging in “existential politics,” using rhetoric about a “plague” of Democratic voters, apocalyptic themes, and the “Flight 93” metaphor of terror. They quote Hofstadter on paranoid extremism: “[I]f ‘what is at stake is always a conflict between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish.’”

I would add Hofstadter’s observations about dispossession, which ring truer today:

The spokesmen of those earlier [historical] movements felt that they stood for causes and personal types that were still in possession of their country—that they were fending off threats to a still established way of life. But the modern right wing, as Daniel Bell has put it, feels dispossessed: America has been largely taken away from them and their kind, though they are determined to try to repossess it and to prevent the final destructive act of subversion. The old American virtues have already been eaten away by cosmopolitans and intellectuals; the old competitive capitalism has been gradually undermined by socialistic and communistic schemers; the old national security and independence have been destroyed by treasonous plots, having as their most powerful agents not merely outsiders and foreigners as of old but major statesmen who are at the very centers of American power. Their predecessors had discovered conspiracies; the modern radical right finds conspiracy to be betrayal from on high. Important changes may also be traced to the effects of the mass media. The villains of the modern right are much more vivid than those of their paranoid predecessors, much better known to the public; the literature of the paranoid style is by the same token richer and more circumstantial in personal description and personal invective.

From Gingrich to Trump, the right feels increasingly dispossessed, so it fights back with a sense of entitlement, existential anxiety, and extreme tactics. “America has been largely taken away from them,” all the more so in 2016. “Make America Great Again” means to take America back, to repossess it from Obama and the conspiratorial elites, from people of color gaining in numbers and status, from women challenging the patriarchy. Changes in mass media drive the paranoia, from Fox News to social media platforms and their manipulations. These dispossessed seem to be saying, “This is my America, and if I can’t have it, no one can.” From that sense of entitlement, grievance, and resentment, it is not shocking that Republicans have been more aggressively playing hardball and beanball.