The point is, the Senate is not now in "Recess". Obama made a deliberate choice ot not work with teh Senate when he could. So the Senate chose to not be in Recess. And the specific law that created this job said that the Director must be approved by the Senate.
It is a very good argument too. Either way. My disappointment is that Obama has chosen politics again, at the expense of the country. The SOB hasn't one ounce of the leadership abilities of any recent President. As I noted earlier, agree or disagree with their politics, but Reagan and Clinton did work within the framework, and within political differences, and advanced the best interests of the country in partnership with the opposition.