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.