Fellow lawprof Tuan Samahon asked me to post this; I express no opinion on its merits, but it struck me as interesting:
Is the Senate still in recess today (Sunday, Sept. 4, 2005) such that the President could exercise his intrasession recess appointments power to name a temporary replacement for the Chief Justice? The August recess (August 1 to September 5) lasts until Tuesday, when the Roberts nomination will occur. There was a brief 39 minute emergency session of the Senate last week, but the Senate then adjourned again. Are we still in recess such that the POTUS could appoint a recess appointee to the Rehnquist vacancy, either the presumptive permanent nominee or a caretaker? Obviously, there is precedent for such recess appointments to the Supreme Court (Brennan, Stewart, Warren, Holmes, among others). In light of the risk of starting the term short a justice, it might well be justified. And politically, it might be shrewd for the Administration to so do.