The Senate adjourned earlier this week, even though it confirmed only half of the 38 judicial nominees awaiting a vote on the Senate floor. And the overwhelming majority of the blocked nominees cleared the Senate Judiciary Committee without a single negative vote.

This failure to confirm even many of the most uncontroversial nominees is the culmination of a concerted GOP strategy to delay as many of President Obama’s judges as much as possible, and it leaves Obama with fewer judges confirmed than any recent president:

The Senate’s failure to even hold a vote on these nominees leaves the federal judiciary with record vacancies — approximately one in nine federal judgeships are now vacant.

Notably, three of these vacancies are on just one court. Of the four active judgeships on the United States District Court for the Central District of Illinois, three are presently vacant, leaving the court’s chief judge as its only active member. Two of President Obama’s nominees to this court, James Shadid and Sue Myerscough, were unanimously approved by the Judiciary Committee for this excessively overburdened court. Yet none of Obama’s nominees to the Central District of Illinois received a vote in the 111th Congress.

This failure to confirm anyone to this Illinois court may be the most reckless legacy of the right’s obstruction of Obama’s judges, but it isn’t even the most absurd. One of the president’s blocked nominees, District of Oregon nominee Marco Hernandez, was previously nominated for the exact same job by President George W. Bush. Somehow, now that he’s an Obama nominee, the GOP has suddenly decided to throw up roadblocks before his confirmation.

The Republican communications machine has kicked into high gear trying to paint the GOP as the party of the Constitution. Last week, the incoming House leadership announced an at-best pointless plan to require every bill to be accompanied by “constitutional authority” statement. Rep. Michele Bachmann (R-MN) has garnered buckets of press attention for her plan to host classes on the Constitution — including one class taught by Justice Antonin Scalia. Today, the House GOP added to these symbolic acts of reverence for the Constitution by announcing that they will begin the new House session with a ritualized reading of the document itself:

House Republicans will even provide for a reading of the Constitution in the House chamber on the second day of the next Congress. . . .

Taken together, the rules changes appear aimed at addressing complaints that the legislative process isn’t transparent enough, that Congress is rigged to overspend and that lawmakers ignore the Constitution when formulating policy.

There’s only one problem with the GOP’s new image makeover — time and time again, their actions betray their contempt for the Constitution.

Bachmann plans to host classes taught, not just by occasionally-correct Justice Scalia, but also by unhinged radicals such as Christian right crusader David Barton and 9/11 truther Andrew Napolitano. Barton has claimed that the entire federal highway system is unconstitutional, while Napolitano likes to write about how Social Security and the United States Census violate the Constitution when he isn’t busy speculating about whether 9/11 was an inside job.

Other GOP lawmakers have embraced a seemingly endless list of proposals to rewrite the Constitution into something barely recognizable. These range from incoming House Majority Leader Eric Cantor’s (R-VA) support for a bizarre proposal to create a new, incredibly cumbersome method to repeal federal laws, to more distressing proposals to strip people of their citizenship, enshrine discrimination into the Constitution, eliminate all federal education programs, and even repeal the New Deal and the Civil Rights era..

Simply put, no amount of ritualized idolization of the Constitution can hide the GOP’s utter disdain for the actual document.

It is now being widely reported that senators have struck a Republican-friendly deal on judicial nominees which would confirm slightly more than half of the non-controversial nominees currently awaiting a vote, while permitting the GOP to block the four nominees they have decided to oppose:

After a months long blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama‘s non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal.

Among the four is Goodwin Liu, a law school dean seen as a potential future Supreme Court pick, whose current nomination to the 9th U.S. Circuit Court of Appeals in San Francisco has sparked strong criticism from Republicans.

As part of the arrangement, the Senate has approved 10 judges in the past few days without a single dissenting vote. One of them, Albert Diaz, had been awaiting confirmation to the 4th Circuit Court of Appeals in Richmond, Va., since clearing the Judiciary Committee in January.

The audacity of this deal is truly breathtaking. Republicans will confirm less than all of Obama’s “non-controversial” nominees — the nominees that they have absolutely no objection to whatsoever — and will block anyone they choose, no matter how spurious their objections. And, lest there be any doubts, the right’s objections to nominees such as Liu are flimsy at best. Most of the case against Liu is routed in intentional misrepresentations of his scholarship, some of which accuse him of saying exactly the opposite of what he has actually said.

So how did the America get to this point, where the majority has to bargain and plead to confirm nominees that no one objects to, and where even the slightest minority objection will scuttle a nominee? Unsurprisingly, the answer lies in the Senate’s easily-abused rules.

The Senate rules empowers the minority to force up to 30 hours of wasted floor time for each nominee the majority wishes to confirm. When you multiply this across the hundreds of judges, ambassadors, assistant secretaries and other jobs a new president must fill, it adds up to more time than the Senate is in session for two entire presidential terms:

Because the minority has the power to slow the Senate to a virtual halt, they can use this power to extort even the most unreasonable demands from the minority. In this case, the Senate GOP can simply threaten to grind all confirmations to a near halt unless the majority complies with their arbitrary demand to block Liu and others.

Next month, a one day window opens up when a bare majority of the Senate can change its rules to prevent this kind of hostage-taking from happening again. If the Senate misses this opportunity, another window will not open again for two years.

Late last week, the House GOP leadership circulated a memo announcing their plans to impose a new requirement on all legislation introduced in that body:

The Pledge to America released by House Republicans in September of this year included a commitment to “require every bill to cite its specific Constitutional Authority.” To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law.

As this requirement will apply to all bills and joint resolutions introduced in the 112th Congress — including those introduced on the first day — we are writing to provide early guidance for complying with this rule so as to minimize any disruption caused by its implementation.

As ThinkProgress explained when the GOP released its so-called Pledge to America, this proposal is largely a solution in search of a problem. The Constitution gives Congress broad authority to regulate the national economy and to raise and spend revenues, and there is simply no evidence whatsoever that Congress exceeds this authority on all but the most rare occasions. Less than one federal law is struck down every year as unconstitutional, and many of the few laws that are struck down are invalidated because they violate the Constitution’s civil rights protections — such as the right to free speech or to be free from discrimination — and not because they exceed Congress’ enumerated powers.

Yet, while the GOP’s proposal is unlike to address any existing problem, it could also wind up causing serious new ones.

In a questionably-reasoned decision allowing the most high-profile of the health care lawsuits to move forward, Republican Judge Roger Vinson held that the Affordable Care Act’s provision requiring all Americans to either carry health insurance or pay slightly more income taxes somehow does not fall within Congress’ power to levy taxes because Congress did not use the word “tax” to describe the provision in some parts of the bill.

Moreover, the health care litigation provides a warning that established constitutional doctrine may not always be there when Congress needs it. One year ago, the notion that the Affordable Care Act might violate the Constitution was a punchline. Today, the Supreme Court’s precedents are even more favorable to the Act than they were a year ago, and the doctrinal argument against health reform remains laughable. Nevertheless, one federal judge has already declared a portion of the law unconstitutional, and Judge Vinson appears poised to do the same soon. If either of these decisions are upheld by the Supreme Court, the scope of Congress’ power would become impossible to pin down.

So the new landscape is very simple. Congress will be required to name a constitutional provision that supports each law they pass. If Congress fails to mention another provision, Judge Vinson would say that that provision can’t apply — even if it would be sufficient to uphold the law. Moreover, the scope of each of Congress’ powers can change at a moments notice and without warning. So any law could be struck down simply because some Member of Congress makes an unforeseeable error in describing the law’s constitutional basis.

There are many reasons why Judge Vinson’s opinion should be reversed on appeal. The House GOP just came up with another one.

Nineteenth century nullificationist Senator John C. Calhoun

Last month, Texas state Rep. Leo Berman (R) introduced a birther bill preventing any persons from appearing on a presidential ballot in his state unless they present their “original birth certificate indicating that the person is a natural-born United States citizen.” As it turns out, however, Berman’s birther bill is only his second most radical proposal. Berman has also introduced a proposal to make it a felony for any federal official to enforce the Affordable Care Act:

FEDERAL ACT NOT AUTHORIZED. The [Affordable Care] Act is not authorized by the United States Constitution and violates the constitution ’s true meaning and intent as expressed by the founders of this country and the ratifiers of the constitution. [...]

(a) A person who is an official, agent, or employee of the United States or an employee of a corporation providing services to the United States commits an offense if the person enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the United States in violation of this chapter.

(b) An offense under Subsection (a) is a state jail felony punishable by confinement for a term of not more than five years, a fine of not more than $5,000, or both the confinement and the fine.

Lest there be any doubt, Berman’s proposal is wildly unconstitutional. The U.S. Constitution expressly states that Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding,” thus expressly establishing that states do not have a veto power over federal laws.

Yet Berman is hardly the only right-wing leader to embrace the pre-Civil War notion that states can simply nullify laws that they don’t like. Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA)  each signed obviously unconstitutional laws claiming to nullify the Affordable Care Act. Former Texas Solicitor General Ted Cruz recently claimed — falsely — that two or more states can nullify federal laws simply by joining together into an agreement with each other. One state attorney general candidate even read aloud from the works of a right-wing pseudo-historian who once wrote that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

Berman, however, appears to be the first state lawmaker to actually consider throwing rank-and-file federal officials in jail simply for doing their job.

Earlier today, a three judge panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments in the Perry v. Schwarzenegger challenge to anti-gay Proposition 8.  The lengthy hearing — extending for more than two full hours — was divided into a hearing on the merits of the case and another, earlier session on whether or not the court has the power to hear this case in the first place.

At first glance, the case appears to have gone well for supporters of the Constitution’s Equal Protection Clause.  Judge Michael Daly Hawkins, the “swing vote” between liberal Judge Stephen Reinhardt and conservative Judge N. Randy Smith, was particularly aggressive in questioning Prop 8′s proponents.  Indeed, his very first question on the merits of the case compared marriage discrimination to public school segregation.  Likewise, the judges were eerily quiet when plaintiff’s attorney Ted Olson took the podium, and were far more active in questioning marriage equality’s opponents.

At the same time, however, the judges often appeared to be questing for a way to strike down Prop 8 without also ruling that all marriage discrimination in the United States must end immediately.  Their questions suggest three possibilities:

• No Standing

Coming into the hearing, the smart money was on a decision holding that supporters of Prop 8 lack “standing” to bring this appeal because the Constitution requires someone seeking relief from an appeals court to show that they have somehow been injured by the court below — and anti-gay activists suffer no harm whatsoever from marriage equality.  By the end of the hearing, however, this outcome was not quite so certain.

Both Judges Reinhardt and Smith appeared concerned that, by refusing to appeal the trial court’s decision themselves, California’s governor and attorney general had effectively vetoed a state referendum.  Because California law does not allow a governor to directly veto a referendum, Judge Smith suggested, it shouldn’t enable two state officials to indirectly veto it by refusing to litigate.

Reinhardt raised the possibility of asking the California Supreme Court to answer whether Prop 8′s proponents are allowed to act on behalf of the state, a tactic which could allow the court to reach the merits of the suit, but which could also delay resolution of the case by months.

• Civil Unions Require Marriage

In Romer v. Evans, the Supreme Court held that a law motivated solely by animus against a particular group violates the Constitution.  Prop 8′s proponents offered a few possible goals of the law other than unconstitutional animus, such as the state’s desire to encourage couplings that are biologically capable of producing children.  At one point, however, Judge Smith questioned whether this suggested motivation can rescue the law.  Because California already offers gay couples all the legal rights of marriage besides the word “marriage,” they have already stopped affording special status to straight couples and thus have no rational basis for denying use of the title “marriage” to gay men and lesbians.

Later in the argument, however, Judge Smith suggested that this argument could cut the other way — because California law takes the minimum steps necessary to place straight couples on a pedestal, it does not impose any more injury on gay couples than is necessary to uphold Prop 8 proponent’s suggested goal.

• Taking Away A Right Is Harder

Finally, the judges were quite interested in the significance of the fact that Prop 8 took away from gay couples a right that they already had under California law.  There was some indication that the court may decide that stripping a right is more difficult to justify under the Constitution than simply not providing in a new right, in which case Prop 8 would fall but most non-equality states would be allowed to continue their present policy.

Nineteenth Century Nullificiationist John C. Calhoun

One of the more disturbing developments of the last two years is the reemergence of nullificationism, the unconstitutional notion that states can invalidate laws that they don’t like, among conservative lawmakers and activists.  Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA)  each signed obviously unconstitutional laws claiming to nullify the Affordable Care Act.  A few right-wing politicians have even embraced the views of Tom Woods, a pseudo-historian and co-founder of a neo-Confederate hate group who once wrote that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

The only problem for these would-be John C. Calhouns is that the Constitution expressly rejects nullification, but that hasn’t stopped them from dreaming up increasingly creative theories for how states can ignore the Constitution’s express command.  As Dave Weigel reports, the latest such theory comes from former Texas Solicitor General Ted Cruz. The Constitution permits states with the consent of Congress to form contracts with each other — a power that Cruz somehow interprets to allow the states to bypass Congress and the President altogether:

Interstate compacts are an effective way to regulate areas of mutual concern among two or more States. In areas of overlapping state and federal jurisdiction, or where state legislation is preempted by an enumerated federal power, the Constitution requires congressional consent (Art. I, sec. 10). The Supreme Court has held that such congressional consent trumps prior federal law and may even subordinate federal agencies to agencies created by the interstate compact. Although Congress has generally consented to interstate compacts through regular legislation signed by the President, congressional consent does not necessarily require presidential signature; the Supreme Court has suggested that congressional consent may even be inferred from acquiescence. . . .

We propose an interstate compact to create an alternative state-based regulation of health care. The compact would provide that member States are free to choose their preferred model for health care policy; that they may opt out of Obamacare entirely . . . .

Cruz is actually a pretty good lawyer, so it is deeply embarrassing that he would sign his name to proposal that is so riddled with errors.  Contrary to Cruz’ implication, an interstate compact cannot be used to bypass the President’s veto power.  As Article I of the Constitution provides:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Likewise, the claim that “congressional consent may even be inferred from acquiescence” is simply false.  Under the Supreme Court’s decision in College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., “[s]tates cannot form an interstate compact without first obtaining the express consent of Congress.”  (There is some very old precedent suggesting that Congress’ consent may be implied when it specifically references a compact in a law that carries that compact into effect, but such a law goes a lot further than mere “acquiescence.”)

Ultimately, it’s hard to read Cruz’ claim to the contrary as anything other than another example of conservatives trying to ignore the actual Constitution and replace it with the one that they want.

Earlier this week, the Ninth Circuit announced the three judge panel which will hear the appeal of Judge Vaughn Walker’s decision striking down Prop 8. The panel includes a judge who is widely expected to affirm Walker’s decision — Judge Stephen Reinhardt.  Almost immediately, anti-gay groups responded to this announcement by demanding that Reinhardt recuse himself because of his wife’s role with the ACLU.  Reinhardt’s wife, Ramona Ripston, heads the ACLU of Southern California, which has been an outspoken opponent of Prop 8 and which praised Judge Walker’s decision.

Yet, the right might want to think a little harder about one of the arguments the anti-gay groups raised in their motion seeking Reinhardt’s recusal (a motion which he has since denied), since the same argument would apply to more famous judge in an even more famous lawsuit:

Judge Reinhardt must recuse because “his spouse … [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” Ms. Ripston is “responsible for all phases of [ACLU/SC’s] programs,” and under her direction the organization has put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage,” Most importantly, as we have explained, the ACLU/SC’s effort to invalidate Proposition 8 has extended to advocating that result in this very case.

It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding. Because this is so, it is immaterial whether or not Ms. Ripston’s interest is financial, and Judge Reinhardt must recuse.

Judge Reinhardt, of course, is not the only judge whose wife is an outspoken supporter of a case that was making its way to her husband’s court.  Supreme Court spouse Ginni Thomas leads a Tea Party group called Liberty Central (although there are mixed reports suggesting that she may step down), which vigorously opposes the Affordable Care Act.  She even initially signed onto a memo calling the Act unconstitutional, although her name was later pulled from that memo following news reports that she was raising ethical issues for her husband.  If the mere fact that Ripston endorsed a certain outcome in the Prop 8 case requires her husband’s recusal from that case — as the anti-gay groups claim — then Justice Thomas has no business coming within ten feet of the Affordable Care Act litigation.

Last September, the Speaker of the Virginia House of Delegates co-signed a bizarre op-ed laden with Glenn Beck-esque rants against dastardly “progressives” who created a “constitutional imbalance” by allowing voters to choose their own senators.  The centerpiece of this op-ed was a proposed constitutional amendment allowing a supermajority of the states to repeal federal laws:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Silly constitutional amendments are proposed all the time, so that fact that a right-wing editorial page decided to publish one such proposal isn’t all that surprising.  What is surprising, however, is that this proposal appears to be gaining some steam — earning the endorsement of incoming House Majority Leader Eric Cantor (R-VA) yesterday.

At first glance, it’s not entirely clear what the amendment’s proponents hope to accomplish. Cantor might not be aware of this fact, but there’s already a mechanism to repeal a law that the states disapprove of in the Constitution. It turns out that the states get to send representatives to two little-known bodies called the “House of Representatives” and the “Senate” which can vote to repeal laws –- one of which is even malapportioned to favor Republican states!  Cantor is not likely to change much by creating a new constitutional procedure for repealing laws — enacting a repeal resolution in 34 of the 50 state legislatures — that is significantly more difficult to invoke than simply repealing a law the old fashioned way.

But Cantor’s support for this solution in search of a problem is just the latest example of conservatives wrapping themselves in the rhetoric of the Constitution while simultaneously trying to remake to document into something completely unrecognizable.  In recent months, Cantor’s co-ideologues have called for a return to the Dred Scott vision of U.S. citizenship, and declared war on Congress’ power to raise money and on voters’ power to chose their own senators. Many have even proclaimed everything from child labor laws to the federal ban on whites-only lunch counters to the minimum wage to Social Security and Medicare to be unconstitutional.