What would happen if there was another Supreme Court vacancy before January 2009 and Senate Democrats followed Senator Schumer's counsel and successfully blocked the confirmation of another Bush nominee? One possibility is that President Bush would make a recess appointment. Such action is hardly unprecedented. According to C-Span, there have been 15 recess appointments to the Supreme Court. The first was John Rutledge, who was given a recess appointment to be Chief Justice by President George Washington in 1795. As noted in this report, President Eisenhower made three recess appointments to the Court — Earl Warren, William Brennan, and Potter Stewart. Brennan, in particular, was placed on the Court in the midst of the 1956 Presidential campaign, arguably for political reasons.
I am not a fan of recess appointments to Article III courts. Nor am I a fan of Senate obstruction of judicial nominees. Whichever party wins the White House in 2008, I hope to see a de-escalation of judicial confirmation fights after January 2009, if not before. Unfortunately, remarks like Senator Schumer's on Friday — and the likely GOP response — do not bode well in this regard, and we may actually see another recess appointment to the nation's highest court.
UPDATE: Given some of the comments, I thought it was worth posting a link to this summary of my views on judicial nomination fights.