The President can make recess appts to the Courts, even the Supreme Cabal, 3 different times between now and Jan 20, 2009.
1 - After the current session of Congress ends and before the next begins. Such appts would expire at the end of next year's session ~ Dec 2007.
2. During any recess of the next session of the Senate - even a one hour lunch break. Such appts would expire ~ Dec '08. The only way to prevent such an appt would be for Dems to keep the Senate in session 24/7.
3. After the Senate's final break in 08. Such appts would expire ~ Dec '09.
Recess appointment - Wikipedia, the free encyclopedia
In 2005, the Court declined to hear a case regarding one of Pres. Bush's 3 recess appts so far (2 for judgeships, 1 for UN ambassador)
Pres. Clinton used the recess appt more than 110 times. Pres Clinton, speaking to CSPAN after the '94 election, pointed out that recess appts for the Supreme Cabal have been made more than a dozen times. There is ample precedent.
C-SPAN's Capitol Questions
"All modern Presidents have made recess appointments both during the shorter breaks within a session of Congress as well as during the longer recess between the two sessions."
I wouldn't expect such appts, really, until after January. In THAT case, such appts would last until just before the NEXT Senate takes power in '09.
But, don't expect that Pres. Bush will leave bench seats unfilled for the next President. No other President has done that.
And don't expect that this election means that Pres. Bush MUST appt moderates to the Supreme Cabal. He can literally appoint anyone he wants, including Judge Robert Bork, if he were of a mind - and make that appt stick until the NEXT Congress can decide the issue.
What makes this concept important is the rumors over the blogosphere that Judge John Paul Stevens, 86, is in very poor health. (In fairness, such rumors have been around yearly at least as far back as 1998.) Still, the rumors are strong enough for Newsweek to speculate that Janice Rogers Brown is at the top of Pres. Bush's post-election SC list. She would be a hard candidate to filibuster (black and female) and so Pres. Bush would almost certainly give the Senate time to consider her before resulting to the 'recess' option. And even THEN, he'd not likely put a serious long term contender in a recess position - it's the political equivalent of 'damaged goods'. If he had to name a recess SC Judge, I'd expect it to be a relatively 'throwaway' firebrand conservative.
Once the 4 conservatives on the Court, plus a 'recess' Judge, overturns Roe, the concept of 'stare decisis' takes on a whole new meaning.
Ultimately the Constitution is VERY clear on this role, and equally clear in not granting any extenuating circumstances that would deny this right: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
The one drawback of a recess SC appt: it isn't a 'legacy' appt and depends upon the next Pres ultimately getting to replace the pick. It would be a 'nuclear' option. But, it does represent a backstop against the Senate stonewalling every choice. And, if an appt becomes available, the most favorable situation would be to get a pick confirmed and planted for life. If that appt becomes available sooner than later, the Pres could make a recess appt and STILL be the President in power to replace that recess appt.
Sorry this is so long, but one more thing to consider: Supreme Cabal nominees go straight to the floor for a vote: they can't be bottled up in committee. Even with a majority, the only way to prevent a floor vote on a Supreme Cabal pick is by filibuster.