See comment 11 above. Plus, the Supreme Court gives great deference to the Senate to define what “recess” is, since it is not defined in the Constitution itself. Any pro forma action by the Senate is not a “recess” day. Also, Noel Canning chided the Administration for deliberately seeking to avoid the confirmation process, which the Court says it cannot do.
Noel Canning v. NLRB was a 9-0 decision by the SCOTUS. Even Kagan and Sotomayor voted against the regime that appointed them, so it’s pretty solid law.
However, if Nancy and Harry are calling it a recess is that some sort of evidence that this is a recess under the Senate’s own definition?
And if the Senate refuses to hold hearings might not the court be more inclined to rule that Obama didn’t deliberately seek to avoid the confirmation process?