recess for the purpose of the Recess Appointment clause actually is, which means the phrase is rather open ended an open to interpretation. And that is where this entire legal analysis must come to an end, really.

This issue has not been dealt with by the Courts on many occassions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful:

During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama. A Republican-led Senate coalition fell seven votes shyNotice No. 01-85
March 13, 2001

TO:
All NYMEX Division Members/Member Firms
All NYMEX Division Clearing Members
All NYMEX Division Floor Traders
All NYMEX Division Operations Managers

FROM:
George Henderson, Vice President

RE:
Options Expiration Operational Procedures for the Trading
Floor and Clearing Members
________________________________________________________________

The expiration date for the April 2001 options contract for Gasoline-Crack 
(CGJ1) and Heating Oil-Crack (CHJ1) is Monday, March 19, 2001.

GENERAL OPERATIONAL PROCEDURES

All Clearing Members and Qualified Floor Traders that carried an options 
position as of the close of business day prior to the expiration day, or 
engaged in trading activity on Expiration Day in the expiring options 
contract will be required to have a knowledgeable, duly authorized 
representative present at their normal work station promptly at 5:30 p.m. 
until released by the Exchange staff as specified below.  All adjustments 
and/or corrections, must be accompanied