As ThinkProgress predicted yesterday, congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:

President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.

First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”

New Hampshire Republicans are taking textual originalism to a whole new level: three lawmakers have proposed a bill that requires that all legislation find its origin not in the U.S. constitution, but an English document crafted in 1215.

When the legislature reconvenes this month, Republicans want their colleagues to justify many new bills with a direct quote from the 800-year-old Magna Carta:

House Bill 1580 is the product of such a brainstorming session this summer between three freshman House Republicans: Bob Kingsbury of Laconia, Tim Twombly of Nashua and Lucien Vita of Middleton. The eyebrow-raiser, set to be introduced when the Legislature reconvenes next month, requires legislation to find its origin in an English document crafted in 1215.

“All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived,” is the bill’s one sentence.

The Magna Carta, while famed as the first major declaration of rights under English monarchy, is a bit outdated in its actual prose.

The Magna Carta is indisputably an important historical document, with ideas about liberty that inspired America’s founders. But as the Concord Monitor points out, the substance of the document is fixated on the tedium of feudal times, and has little if any relevance to modern American life.

New Hampshire lawmakers might have trouble applying passages like, “We shall straightway return the son of Llewelin and all the Welsh hostages,” or, “If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age.”

One of the bill’s sponsors admitted that he wasn’t terribly familiar with the actual text, and mainly saw the measure as an homage. New Hampshire Democratic Party spokesman Ray Buckley said he was “mostly speechless” when he heard about the bill. “I appreciate all the hard work the Republican legislators are putting into the effort to make them look like extremists,” he said. “Saves us the trouble.”

Conservatives have long prided themselves on being constitutional “purists” who want to strip government down to the basic form they say was laid out in the country’s founding document. But requiring textual justification from another country’s founding document, which has no legal history or authority in the U.S., is a curious extension of that principle.

As the country’s focus shifts from the Iowa caucus to the more influential New Hampshire primary, it’s worth noting that the state’s Republicans apparently trying to repeal not just the 20th century “welfare state,” or even the 20th century, but the modern era entirely.

(HT: Working America)

Late last month, Texas trial judge Teresa Hawthorne held that Texas’ death penalty statue violates the Constitution because it grants too much arbitrary discretion to prosecutors. As a result of this decision, Hawthorne has now been deemed unfit to hear a capital case:

Teresa Hawthorne, the Dallas County judge who ruled that the state’s death penalty statute was unconstitutional, must recuse herself from a capital murder case, a judge ruled today. [...]

In his closing arguments, Doug Parks, another of Harris’s attorneys, argued that the state simply didn’t like Hawthorne’s ruling in the defense’s favor on some of the pre-trial motions. If she had ruled in the state’s favor, he argued, “Her personal beliefs about the death penalty wouldn’t matter one iota. … She made rulings the state didn’t like, and now they’re attacking the trial judge based on her personal beliefs and feelings.”

Ultimately, though, [Judge John] Ovard still ruled that a “reasonable person” would have to conclude that Judge Hawthorne is too biased to preside over the case.

This is not law. Indeed, this is barely a mockery of law. If the state disagrees with Hawthorne’s decision, then it is free to appeal it. But when judges can be disqualified from hearing cases if they reach an unpopular decision than the justice system truly is rigged.

And this isn’t even the first time Texas’ court system used the threat of forced recusal against a judge who disagreed with the state’s execution policies. In 2010, Judge Kevin Fine declared the state’s death penalty statute unconstitutional because it was too likely to execute an innocent person. Fine eventually withdrew the opinion, however, after he was threatened with a forced recusal hearing of his own.

Lest there be any doubt, Texas accords far different treatment to judges who demonstrate potential bias in favor of killing criminal defendants. In 2007, Judge Sharon Keller, presiding judge on the highest criminal court in Texas, likely manipulated her court’s procedures to prevent a death row inmate from receiving a stay of execution from the United States Supreme Court. Although a state ethics panel initially gave Keller a “public warning” for her actions, an appeals panel later wiped away even this slap on the wrist.

Likewise, in 1994 Texas elected an unqualified attorney named Stephen Mansfield to its highest criminal court. Judge Mansfield had been disciplined for practicing law without a license in Florida and he was arrested for scalping tickets to the Texas-Texas A&M game on university property. He also was elected on a platform of promising harsher decisions in death penalty cases. Mansfield left the court after he decided not to run for re-election, but he never faced one sanction for his macabre election strategy.

But if one little trial judge dares to suggest that the state’s death penalty procedures are unconstitutional, she will be forced off capital trials because this view could only stem from unreasonable bias.

Yesterday, former Sen. Rick Santorum (R-PA) surprised Google users and anyone who was around for the 2006 elections by coming within just eight votes of victory in the Iowa Republican caucus. Santorum’s path to the GOP nomination is still quite uncertain, to say the least, but he has now emerged as the most likely rival to Mitt Romney. As such, it is worth considering how both men would approach judicial nominations if they were elected to pick the nation’s federal judges.

As ThinkProgress previously explained, Romney would not pick good judges or justices. Romney is unambiguously pleased with the Roberts Court’s record of deference to wealthy corporations. His four model justices — Roberts, Scalia, Thomas, and Alito — all cast the same unforgivable vote for corporate-owned elections in Citizens United. They each voted to allow a wealthy individual to effectively buy a seat on the West Virginia Supreme Court, and they have consistently pushed more and more creative ways to immunize corporations from the law.

Yet there is reason to suspect that Santorum’s judges would be even worse. At a recent GOP debate, Santorum was the only candidate who identified a single justice as his favorite current member of the Supreme Court — Justice Clarence Thomas.

Frequent readers of this blog do not need to be reminded of how ominous Santorum’s choice is. For one thing, it shows that Santorum takes a very cavalier attitude towards the need for judges to be untainted by outside influences and beyond reproach. Justice Thomas is caught in a long list of ethics scandals, but the most disturbing is probably his penchant for accepting lavish gifts from wealth individuals and corporate-aligned organizations. Leading conservative donor Harlan Crow, whose company often litigates in federal court, provided $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute (AEI), a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 bust of Abraham Lincoln as a gift. As ThinkProgress has explained, this gifting scandal closely resembles a similar one that forced Justice Abe Fortas to resign from the Supreme Court in disgrace in 1969.

Santorum’s affection for Thomas also raises very serious questions about how he views the Constitution. Thomas certainly shares Santorum’s view that the Constitution does not protect Americans’ right to use contraception or choose their own sexual partners, but so do other members of the Supreme Court. Moreover, unlike Justice Antonin Scalia, Thomas does not really share Santorum’s gratuitous belligerence towards gay people. Scalia’s dissent in the seminal gay right’s case Lawrence v. Texas is riddled with angry conspiracy theories about a “homosexual agenda” that has supposedly taken over the legal profession. Thomas’ dissent, by contrast, describes the Texas sodomy law struck down in Lawrence as “uncommonly silly” and warns that “[p]unishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.” If Santorum were looking for someone that shares his cultural grievances, he would have named Scalia has his model justice.

Perhaps the greatest difference between Scalia and Thomas, however, is Thomas’ belief that pretty much everything violates the Constitution (with the exception of state laws criminalizing sex, of course). Thomas has repeatedly advocated a twisted reading of the Constitution that would invalidate a long list of essential laws, including the federal ban on workplace discrimination, similar laws protecting older Americans and Americans with disabilities, the national minimum wage, national child labor laws, and the federal ban on whites-only lunch counters.

Santorum’s selection of Thomas over Scalia strongly suggests that he shares many of Thomas’ most radical views. Now that Santorum has emerged as a major Republican candidate, he has an obligation to explain whether or not he shares his model justice’s desire to see most of the last century declared unconstitutional.