Interesting distinction, but the Constitutional provision for recess appointments applies to "vacancies" and does not exclude judges; it only specifies that the commission to which they are appointed expires at the end of the next session. In theory, he could make the appointment and if the senate refuses then to act on the appointment during the next session the commission would expire creating a vacancy once again which could be filled with a recess appointment. Therefore, he could probably appoint the judges with recess appointments and force the senate to act on the appointments this way. They would reject some, but probably many (perhaps most) would be confirmed in order to give the impression they aren't completely partisan and obstructionist.