With the opening of the Supreme Court today, I thought I would dig through the vault and pull up the opening of another Supreme Court: This one from 1956 when an eleventh hour recess appointment by President Eisenhower of William Joseph Brennan to replace outgoing Justice Sherman Minton created a stir all over Capitol Hill and throughout the judicial community. Discussing the ramifications of such a recess appointment, from this September 30, 1956 broadcast of New World were Dean Maurice F.X. Donohue, Philip Kurland, Allison Dunham and Brainerd Currie.
Dean Maurice F.X. Donohue:”Mister Currie, is there any precedent for a situation in which a Justice serves on a recess basis and then is not confirmed?”
Brainerd Currie: “Well, there’s one precedent. Recess appointments are rare, they’re not non-existent and early in our history we had a rather dramatic instance of a recess appointment which ultimately failed in confirmation. President Washington appointed John Rutledge of South Carolina to succeed our first Chief Justice John Jay. And Chief Justice Rutledge sat through a term, heard cases, but when the Senate convened it declined confirmation.”
From another First Monday In October.