Imagine the media howls if Bush had tried this!
Nope. Now the howls are,,,Bush did this so whats the big deal.
Bush didn’t do it. That’s the point. It’s true that two of the three-judge panel was casting doubt on the whole practice of recess appointments as they have evolved, but Bush and others who used this waited until the legislature actually was in recess.
The legislature was in session even though it was having pro-forma sessions - and was actually doing things, such as working on the payroll tax (IIRC).
Obama simply declared it not in session and went ahead with his appointments, as the third judge on the panel pointed out.