From comments, re-written. Realism, or any other assumption or generalization tout court fosters passivity. Our academy more and more teaches generalizations -names/terms- and the practical manipulation of those terms -instrumentalism- but not the appreciation of specific events and circumstances. Balkin is aware of this, intuitively and intellectually, but he's too lawyerly and deferential to the process to see outside his role.

"That President will want more authority to engage in surveillance, and he'll be delighted for Congress to give it to him officially."

That statement mirrors the logic and modeling by academics of social and economic self-interest. But since it goes so often side by side these days with calls for responsible and serious journalism and the defense of reason, which I can only imagine is meant as disinterested reason the cognitive dissonance gets to be annoying. Is reason the acceptance of simple self-interest or the promulgation of the academic ideals of collaboration?

I've defended for the moral logic of vulgar political reportage not because I don't trust anyone to ever have the country's best interest at heart, but because I trust vulgarians more than self-important priests to know when a line has been crossed. It was a gossip columnist not a political reporter who was overheard leaving a club full of republican partyers at the convention in NY saying in disgust that they were fascists.
Jack Balkin hasn't spent his life trying to get rich, and prestige can be pleasurable without being primary. Publicly refusing to judge the actions of others tends to reinforce their logic, while screaming in anger communicates nothing beyond anger. There's always a line between awareness and indifference. Being able simultaneously to be engaged and disinterested is an art more than a science. And it's this art, the ability to negotiate ambiguity on one's own, that out academy no longer prizes.

Representative democracy is not giving the people what they want. It's being willing to join or to follow until your individual conscience says: enough. David Davis, a British MP, and a Tory, resigned his seat last week, in protest against the 42 day rule, forcing an election he may well lose. If his "self-interest" is the issue then he resigned in error. If his self interest is tied to his self-respect as a British citizen, as a member of a community, he made a rational choice. Dictatorship is telling the people what they want. The responsibility of citizens and of citizen representatives in republican government is the responsibility to refuse when you think it necessary [I'd written "to know when to choose" which is impossible- there is no one answer] to act against your individual conscience. That's the definition of the divided loyalty that is at the center of democratic culture. There's no way to avoid the ambiguities. To respond with objective passivity concerning Obama's response is shameful.
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It's a soldier's job to follow orders and a lawyer's job to make lemonade from lemons. Citizens have a more complex responsibility: and lawyers and soldiers are also citizens. The theory of rational self-interest ignores such ambiguity by saying that such divided loyalty does not exist. That's simply not true.