A quick follow-up to my Confirmation Tales post excerpt:
Eisenhower wasn’t the first president to recess-appoint a justice. George Washington was. (He did it twice.) Six other presidents had done so. But it had been nearly a century since the previous one, Abraham Lincoln’s recess appointment of David Davis in 1862.
When Chief Justice Fred Vinson died in September 1953, the Senate had already recessed for the year. So without a recess appointment, the Court would be without a chief justice until January 1954 at the earliest. I gather that’s why Eisenhower saw fit to recess-appoint Warren in October 1953 and why, in those very different times, the Senate was (so far as I’m aware) okay on his doing so.
It’s striking that Warren was in his capacity as a recess appointee when Brown v. Board of Education was argued in December 1953. Eisenhower nominated Warren for his lifetime seat when the Senate returned in January 1954. The Senate confirmed that nomination by voice vote on March 1, and Warren accepted his commission on March 20.
Warren’s delay in getting his lifetime appointment evidently delayed the Court’s deliberations on Brown. According to law professor Brad Snyder’s recent biography of Felix Frankfurter (Democratic Justice), the post-argument conference vote on Brown “was likely after [Warren’s] confirmation on March 1 and swearing-in on March 20 and could have been as late as” one of the conferences in April. (I’m quoting an unnumbered footnote on p. 895 in the galley version of the biography.) Remarkably, Warren didn’t circulate a draft opinion in Brown to his colleagues until May 7 and 8. The unanimous decision in Brown was issued mere days later, on May 17.