Pryor's recess appointment

[Malla Pollack]

With all due respect, Larry is assuming his conclusion and continuing with
lawyerly nit pick.  While I love a nit pick (or why am I am lawyer), I
strongly suggest that academics pay some attention to common sense.
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
mpollack at law.uoregon.edu
----- Original Message ----- 
From: "Lawrence B. Solum" <lsolum at sandiego.edu>
To: "Nordquest, David A" <NORDQUES001 at gannon.edu>
Cc: "Malla Pollack" <mpollack at law.uoregon.edu>; <conlawprof at lists.ucla.edu>
Sent: Sunday, February 22, 2004 11:31 AM
Subject: RE: Pryor's recess appointment


> Re the question whether delay consequent to a filibuster is the equivalent
of
> advice against the nomination and a denial of consent.
>
> I find speech act theory helpful here.  We are looking for action that
> communicates the speech act made explicit in the locutions: "We hereby
advise
> against " and "We hereby withhold consent from . . ."
>
> The norms of conversational implicature normally do not permit an
inference of
> such illocutionary uptake from mere delay.
>
> Moreover, in the case of the Senate, the problem is more difficult.  The
> Senate has not adopted a supermajority rule for confirmation of judicial
> nominees & the historical record on the relationship between filibuster
and
> judicial nominees is contested.  Moreover, filibusters are almost always
> justified not as vetoes but as opportunities for further deliberation.
This
> is because the internal norms of the Senate have never accepted the
filibuster
> as a veto.  If the filibuster were accepted as a veto, then the Senate
would
> be willing to accept a new rule that allowed a single Senator to trigger a
> supermajority voting rule for Senate action, but it is quite clear that an
> amendment to this effect would receive very little support from the
Senate.
>
> So, in fact, I think that Malla is quite obviously wrong.  In this case,
from
> the act of delay, we cannot infer the necessary illocutionary content.
>
>
> -- 
> Lawrence B. Solum
> Professor of Law
> School of Law
> University of San Diego
> 5998 Alcala Park
> San Diego, CA 92110-2492
> USA
> http://lsolum.blogspot.com
> lsolum at sandiego.edu
>
>
> Quoting "Nordquest, David A" <NORDQUES001 at gannon.edu>:
>
> >
> >
> >
> >
> >
> > RE: Pryor's recess appointment
> >
> >
> >
> >
> > Malla Pollack writes: "Any one who remembers common sense from before
law
> > school has no doubt that by delaying a confirmation vote the Senate
advised
> > Bush to withdraw the nomination." Is a delay in the Senate a delay of
the
> > Senate?
> >
> >
> >
> > David Nordquest, Philosophy Program
> >
> > Gannon University
> >
> >
> >
> >
> >
>
>