One might wonder if the Senate Judiciary Committee is daring the Obama Administration to make some judicial recess appointments (or complicit in the Obama Administration doing so). On its website, the Senate Judiciary Committee currently has this post:
Did You Know? President Eisenhower’s appointment of Potter Stewart to the Supreme Court in 1958 was the last recess appointment to the Supreme Court under Article II, Section 2, Clause 3, of the Constitution. In 1960, the Senate passed a resolution – which had no legally binding effect – expressing the Senate’s objection to recess appointments to the Supreme Court.
With two circuit court (Seventh Circuit and Federal Circuit) nominees still waiting for a hearing before the Senate Judiciary Committee after more than a year of initially being nominated (while subsequent circuit court nominees have received hearings within a month of being nominated), one might argue that the Senate has had a fair opportunity to advise the President and chosen not to exercise it.
Here is an article on judicial recess appointments: [Article]. According to the article, judicial recess appointments were most recently used by Presidents Carter and Clinton.
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Update: The article linked to above was written before the end of the Bush Administration. President Bush made two judicial recess appointments at the circuit court level.
According to some accounts, the Senate is not currently in “recess” and cannot go into “recess” without the permission of the House. Instead, the Senate is currently in “adjournment.”