Also, I should repeat the thrust what I said here in January of last year. Comparing this action by Obama to the Bush and Clinton presidencies is actually not apt. Both Clinton and Bush appointed some controversial figures during congressional recesses, and both appointed more total people during recesses than Obama.
However, those were during periods of time when Congress was indisputably out of session.
In 2007, when the Democrats took control of the Senate, they made the decision to block all future Bush recess appointments by not adjourning. Bush never challenged them on this.
When the Republicans won back the House in 2010 they gained the power to keep congress in session perpetually (note congress as distinct from the Senate.) Under congressional rules, the Senate cannot technically go into recess without the House’s permission, and I believe they can’t fail to hold sessions for more than three days. So the Republicans in the House, by keeping the House “open for business” basically legally required that the Senate gavel in and out at least once every three days. (Many of these Senate sessions would last mere seconds.)
In response to this activity, Obama did something Bush did not do–he decided to bypass the logjam by asserting that even though the House said Congress wasn’t adjourned, that the Congress was de facto adjourned, and he’d be making his appointments anyway.
As I noted at the time, this is distinct from anything Bush did, and was in fact unique in American history, because it was a case of the executive saying it was his discretion to determine when Congress was in session and when it wasn’t.
As I pointed out a year ago, the problem Obama faced was not unique in American history, but you don’t look to Bush for the history lesson. You instead look back to Theodore Roosevelt. During Roosevelt’s presidency, you had the exact same situation, the Senate refused to adjourn, and refused to confirm a large number of the President’s appointments. Roosevelt used an entirely different loophole. Namely, that as you transition from one Congress to the next you have to open the new Congress formally. If you’ve opened the new Congress you have to adjourn the previous Congress. His opponents in Congress obviously realized that, so they adjourned the previous congress and the opened the new one right away, to prevent him from making any recess appointments. But Teddy was one step ahead of them, he had already signed paperwork saying that “effective in the moment between” those two sessions, he was appointing some two hundred persons to Federal offices. In his case, it worked because it was never legally challenged.
Obama made a decision to avail himself of a different loophole, and a court has ruled against him. As I said a year ago, a lot of stuff relating to congressional sessions, recess appointments, loopholes to get around a congress trying to block all appointments and etc are basically the stuff of tradition and untested activity. Roosevelt’s actions were never legally contested, so we have no idea if they would hold up to judicial review. Obama’s decision was contested, so it’s a whole different ball game.