There is one way it could happen, not as a recess

Posted on: December 28, 2016 at 22:46:02 CT

appointment but as a vote by the whole Senate...all 66 people on January 3rd. This scenario is highly unlikely, but technically possible.

On January 3rd, the old Congress is gone and the new Congress gets sworn in. For a brief period of time, there will only be 66 people in the Senate, as the 34 that got elected will not have been sworn in yet, and the old bunch are techinically no longer Senators (although only briefly for some).

Because of the composition of the Senators-elect this year, the Dems would actually have a majority for a brief period on January 3rd, and Joe Biden would still be VP and President of the Senate. Biden could theoretically call for a vote on Garland of the 66-person Senate before the new Senators are sworn in. Again, it's very unlikely that the Dems will do that, as it's pretty slimy, although perhaps not as slimy as refusing to hold a vote or even a hearing on a SCOTUS nominee for over 9 months. (all other nominees have gotten a vote within 125 days in the history of the US)