Scalia:
http://www.scotusblog.com/2014/06/a-view-from-the-court-some-surprises-in-penultimate-session/
On the first question, he says, ‘the majority has to invent new rules for how long a recess can be before the President is allowed to make recess appointments: A three-day break is too short. A four-to-nine day break is probably too short, unless the President can persuade a court that the situation was really urgent. And ten days is probably long enough most of the time, although the majority isn’t really clear about that.†“These new rules have no basis whatsoever in the Constitution,†Scalia continues. “They are just made up.â€
Congress has the authority to change the number of members on the Supreme Court from the current 9 to 8. Then there would be no vacancy to fill.
FACT.