I am not arguing that the Chief Justice's medical condition is not serious nor do I wish him ill. However consider the coincidental timing of this announcement. First of all Bush knows that control of the Senate is very uncertain as are his own prospects for "re"-election. Bush more than any President in my memory has enjoyed the executive privilege afforded him in Article II Section 2.
Appointments of this nature are not unheard of as it was Earl Warren who was appointed to the Supreme Court with a recess appointment under President Eisenhower. The game will probably go something like this....Rehnquist will be successfully treated for thyroid cancer allowing him to rule on any repeats of Bush v Gore after November 2nd. Sometime between December and January 20th Renquist will retire and Bush will elevate Scalia to Chief Justice. The replacement for Scalia will occur after the new Senate is sworn in but by then it will be harder to make partisan political arguments in the public eye. That is if the Senate wasn't full of pink tutu Dems, which unfortunately it is. Watch Daschle concede the fight in the name of bi-partisanship.
The strongest argument in favor of the constitutionality of recess appointments to the federal judiciary is the history of the practice. Presidents have made a total of 310 recess appointments to the federal judiciary since 1789, including eleven appointments to the U.S. Supreme Court. The Senate has confirmed 263 of these recess appointees to serve as Article III judges and has rejected only one Supreme Court recess appointeehttp://www.bipc.com/news.cfm?mode=article&article_id=492&practice_id=56