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SO, IT'S CERTAINLY -- COULD I ASK UNANIMOUS CONSENT?
{16:45:07 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: ALL OF THE TIME OF THE PROPONENTS OF THE
LYNCH NOMINATION HAS EXPIRED.
{16:45:11 NSP} (MR. SCHUMER) { NOT AN OFFICIAL TRANSCRIPT }
MR. SCHUMER: COULD I, MR. PRESIDENT, ASK UNANIMOUS CONSENT THAT
ONE ADDITIONAL MINUTE OF SENATOR LEAHY'S TIME ON ANOTHER JUDGE,
WHERE THERE'S NOT GOING TO BE ANY CONTEST OR DISCUSSION, BE
GIVEN TO ME SO WE'RE NOT EXPANDING THE TIME?
{16:45:23 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: HEARING NO OBJECTION, IT IS SO ORDERED.
{16:45:27 NSP} (MR. SCHUMER) { NOT AN OFFICIAL TRANSCRIPT }
MR. SCHUMER: THANK YOU. AND I THANK SENATOR LEAHY IN ABSENTIA
FOR ALLOWING ME TO DO THAT. I HOPE HE'S NOT TOO UPSET. THE ONLY
POINT I WAS GOING TO MAKE IS IT IS CERTAINLY THE PREROGATIVE OF
MY GOOD FRIEND FROM ALABAMA TO INTERPOLATE SNATCHES OF THE TEXT
FROM BOOK REVIEWS AND CONTRIBUTES TO CONCLUDE THAT MAYBE
PROFESSOR LYNCH HAS A JUDICIAL PHILOSOPHY THAT HE DISAGREES
WITH. BUT THIS IS THE DEFINITIVE AND CURRENT STATEMENT ON THE
ISSUE BY THE NOMINEE, AND I THINK IT PREVAILS. I WOULD JUST SAY
IN CONCLUSION THAT IF PROFESSOR LYNCH IS CONFIRMED, I BELIEVE
{16:45:57} (MR. SCHUMER) { NOT AN OFFICIAL TRANSCRIPT }
THAT SENATOR SESSIONS AND I -- AND I'VE ENJOYED WORKING WITH
HIM ON SO MANY ISSUES -- WILL LOOK BACK FIVE OR TEN YEARS IN
BOTH -- AND BOTH APPROVE OF THE WORK THAT JUDGE LYNCH HAS DONE,
ADMIRE HIS FAITHFULNESS TO THE WORDS OF A DOCUMENT THAT WE BOTH
REGARD ASSAY CREDIT, ANDIBLE HE DOES AS WELL, THE CONSTITUTION,
A DOCUMENT WE ARE ALL SWORN TO UPHOLD. WITH THAT, I YIELD BACK
MY TIME AND THANK MY COLLEAGUE FOR THE DIALOGUE AND FOR MAKING
US THINK AND EXPLORE, AS HE ALWAYS DOES. 1EGS SESSION MR.
PRESIDENT?
{16:46:29 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: THE SENATOR FROM ALABAMA.
{16:46:34 NSP} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
MR. SESSIONS: WHAT IS THE TIME LEFT ON THE LYNCH NOMINATION?
{16:46:39 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: FOUR MINUTES FOR THE SENATOR FROM
ALABAMA. 1EGS SESSION VERY GOOD. MR. PRESIDENT, I WILL JUST--
--
{16:46:49 NSP} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
MR. SESSIONS: MR. PRESIDENT, I WILL JUST NOTE THAT MR. LYNCH'S
WORDS HERE ARE PRETTY EXPLICIT AND LEAVE LITTLE TO DOUBT. I'M
PLEASED TO SEE THAT BEFORE HIS HEARING WETALK ABOUT THE DEATH
BED CONVERSIONS. BUT HIS TESTIMONY, IT DID SOUND SOMEWHAT
IMPROVED OVER THE LANGUAGE MADE HERE, BUT IT REALLY DOES
CONCERN ME WHEN HE DISMISSES CONCEPTS SUCH AS TUALLY LOOKING AT
DICTION NAIRS AT THE TIME THE PEOPLE WHO WROTE THE DOCUMENT IN
{16:47:20} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
REVIEWING WORDS TO SEE WHAT THEY ACTUALLY WERE INTENDED TO
MEAN. THAT'S WHAT A JUDGE REALLY OUGHT TO DO, AND HE DISMISSES
THAT WITH EXCEEDINGLY LIGHT -- ACTUALLY WITH ALMOST CONTEMPT.
AND I THINK WE'VE GOT TO BE AWFULLY -- CONSIDERED AWFULLY
DANGEROUS WHEN A JUDGE FEELS LIKE THAT PRINCIPLES OF THE
CONSTITUTION OF LIBERTY, EQUALITY AND FAIRNESS ARE IN THE
CONSTITUTION. WHEN THOSE WORDS ARE REALLY NOT IN THE
{16:47:55} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
CONSTITUTION AND THE DANGER WITH THOSE WORDS ARE THEIR GREAT
IDEALS. BUT THEY'RE GENERAL, AND THEY HAVE NO DEFINITIVENESS TO
THEM. AND THEY GIVE A PLATFORM FOR A JUDGE TO LEAP OFF INTO
VARIOUS DIFFERENT ISSUES THAT HE MAY PERSONALLY FEEL DEEPLY
ABOUT AND JUST SIMPLY DO SO ON THE BASIS THAT IT'S FAIR OR IT'S
A QUESTION OF EQUALITY. THIS IS FAIRNESS. SO I'LL JUST RULE
{16:48:29} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
THIS WAY. AND WE HAVE PRESERVED OUR NATION WELL BY INSISTING
OUR JUDICIAL REMAIN FAITHFUL TO THE PLAIN AND SIMPLE WORDS OF
THE CONSTITUTION AND THE STATUTES THAT ARE INVOLVED. MR.
PRESIDENT, I WOULD NOW LIKE TO DIRECT MY ATTENTION -- I WOULD
WANT TO USE WHAT TIME I HAVE LEFT ON THE DYK -- ON THE LYNCH
NOMINATION, FOR THE DYK NOMINATION ALSO. I'LL YIELD THE FLOOR
TO SENATOR SMITH WHO I BELIEVE WANTS TO SPEAK. MR. DYK HAS BEEN
{16:49:01} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
NOMINATED FOR THE FEDERAL CIRCUIT HERE IN WASHINGTON. MR. DYK
IS A GOOD LAWYER, APPARENTLY WITH A GOOD ACADEMIC BACKGROUND
AND HAS CERTAIN SKILLS AND ABILITIES THAT I CERTAINLY DON'T
DISPUTE AND DON'T HAVE ANYTHING AGAINST HIM PERSONALLY AS A
PERSON OR FAMILY MAN OR WHATEVER. BUT I DO HAVE SERIOUS
CONCERNS ABOUT THIS COURT, AND I DO OT BELIEVE THAT WE NEED
{16:49:42} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
ANOTHER JUDGE ON THIS COURT. THE FEDERAL CIRCUIT IS A COURT OF
LIMITED JURISDICTION. IT HANDLES PATENT CASES AND MERIT SYSTEM
PROTECTION BOARD CASES, CERTAIN INTERNATIONAL TRADE CASES,
CERTAIN INTERLOCUTORY ORDERS FROM DISTRICTS COURTS. IT'S A
SPECIALIZED COURT AND DOESN'T GET INVOLVED IN TOO MANY
GENERALIZED CASES. BUT WE HAVE ANALYZED THE CASELOAD OF THE
CIRCUIT. I SERVED ON THE COURT MANAGEMENT SUBCOMMITTEE OF THE
SENATE JUDICIARY COMMITTEE. I SERVE ON THERE WITH SENATOR CHUCK
{16:50:18} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
GRASSLEY, WHO CHAIRS THAT SUBCOMMITTEE. I HAVE BEEN A
PRACTICING PROSECUTOR FOR 15 YEARS IN FEDERAL COURTS BEFORE
FEDERAL JUDGES, WHERE I SPENT MY CAREER. I KNOW CERTAIN JUDGES
ARE OVERWHELMED WITH WORK, AND I'VE OBSERVED THAT OTHERS MAY
NOT BE AS OVERWHELMED WITH WORK. AND I WANT TO GO OVER SOME
NUMBERS NOW THAT INDICATE TO ME WITHOUT DOUBT THAT THIS CIRCUIT
IS THE LEAST WORKED CIRCUIT IN AMERICA. IT DOES NOT NEED
{16:50:54} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
ANOTHER JUDGE. AND WOULD LIKE TO SHARE THOSE CONCEPTS WITH MY
FRIEND AND FELLOW MEMBERS OF THIS SENATE. THEY HANDLE APPEALS
IN THE FEDERAL CIRCUIT, APPEALS FROM OTHER COURT CASES. IN 1995
THERE WERE 1,847 CASES FILED, APPEALS FILED IN THE FEDERAL
CIRCUIT. FOUR YEARS LATER, IN 1999, THAT NUMBER HAD FALLEN TO
{16:51:27} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
1,543 CASES, A 16% DECLINE IN CASES FILED. ANOTHER WAY TO LOOK
AT THE CASE IS -- THE CIRCUIT IS HOW MANY CASES ARE TERMINATED
PER JUDGE. THE ADMINISTRATIVE OFFICE OF COURTS PROVIDES A BIG
STATISTICAL REPORT. THEY ANALYZE BY WEIGHTED CASE FACTORS,
JUDGES AND CASES BY CIRCUIT AND DISTRICT AND SO FORTH. IT IS A
BIG BOUND VOLUME. THEY REPORT EVERY YEAR. THE NUMBERS ARE NOT
NUMBERS TO BE ARGUED WITH. THE FEDERAL CIRCUIT HAS BY FAR THE
{16:52:02} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
LOWEST NUMBER OF DISPOSITIONS PER JUE. THE FEDERAL CIRCUIT HAS
141 CASES PER JUDGE TERMINATED. THERE ARE 12 JUDGES -- 11
JUDGES NOW ON THAT CIRCUIT. THE D.C. CIRCUIT -- AS A MATTER OF
FACT, THAT 141 JUDGES WAS WHEN THE COURT HAD TEN JUDGES. WE NOW
HAVE 11 JUDGES ON THAT COURT AND WE'RE TALKING ABOUT ADDING,
MR. DYK WOULD BE THE 12TH JUDGE ON THAT COURT TO TAKE THE
{16:52:38} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
NUMBERS DOWN EVEN FURTHER. THE NEXT CLOSEST CIRCUIT IS A
CIRCUIT I BELIEVE ALSO IS OVERSTAFFED, AND I HAVE OPPOSED
NOMINEES TO THE D.C. CIRCUIT HERE IN WASHINGTON. ODDLY ENOUGH,
BOTH THE CIRCUITS THAT I BELIEVE ARE OVERWORKED ARE LOCATED IN
THIS CITY. THE AVERAGE CASE, DISPOSITIONS FOR A CIRCUIT JUDGE
IN AMERICA IS MORE THAN DOUBLE THAT. LET ME GIVE YOU SOME
EXAMPLES. THE THIRD CIRCUIT AVERAGE TERMINATION PER JUDGE IS
{16:53:11} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
312. THE FOURTH CIRCUIT, 545. THE FIFTH, 668. THAT'S ALMOST --
THAT'S FOUR TIMES WHAT THE FEDERAL -- THE FEDERAL CIRCUIT DOES.
THE SEVENTH CIRCUIT, 352. THE EIGHTH CIRCUIT, 440. THE NINTH
CIRCUIT, 45. THE TENTH CIRCUIT 350. THE 11TH CIRCUIT, MY
CIRCUIT -- FLORIDA, ALABAMA AND GEORGIA -- 820. 820 CASES FOR
{16:53:48} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
-- COMPARED TO 141. THAT'S FIVE, SIX TIMES AS MANY CASES. SO I
WOULD SAY THAT THE TAXPAYERS OF THIS COUNTRY NEED TO GIVE
THOUGHT TO WHETHER OR NOT WE NEED TO ADD A JUDGE TO THIS CIRIT.
IT'S PRETTY OBVIOUS WE OUGHT TO DO THAT. TERMINATIONS FOR JUDGE
IN THE FEDERAL CIRCUIT REPRESENT ONLY 17% OF THE CASES
TERMINATED BY A JUDGE ON THE 11TH CIRCUIT. SENATOR GRASSLEY
ISSUED A REPORT IN MARCH 30, 1999 -- QUOTE -- "ON THE
{16:54:19} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
APPROPRIATE ALLOCATION OF JUDGESHIPS IN THE UNITED STATES
COURTS OF APPEAL." THE REPORT WAS ASSESSED -- ASSESSED THE NEED
TO FILL ONE VACANCY. THE COURT ALREADY FILLED ONE VACANCY ON
THIS COURT, THE FEDERAL SIR CURT. AND THE FEDERAL CIRCUIT
ALREADY HAD 11 ACTIVE JUDGES OF THE 12 AUTHORIZED. THE FEDERAL
CIRCUIT ALSO HAD FIVE SENIOR JUDGES AT THAT TIME. SENIOR JUDGES
CONTRIBUTE A LOT TO THE WORKLOAD. THAT'S A PRETTY HIGH NUMBER,
{16:54:53} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
ALMOST HALF AS MANY JUDGES, AGAIN, ARE SENIOR JUDGES, AND THEY
COME IN ON A LESS WORK LEVEL. THEY DON'T HANDLE THE MOST
IMPORTANT EN BANC CASES, BUT THEY COME IN AND PARTICIPATE IN
DRAFTING OPINIONS. THEY HAVE LAW CLERKS. MANY OF THEM DO ALMOST
AS MANY CASES AS AN ACTIVE JUDGE. SO THEY HAVE FIVE, MAYBE IT'S
DOWN TO FOUR NOW. BUT AT THAT TIME THERE WERE FIVE SENIOR
JUDGES. SENATOR GRASSLEY'S REPORT STATES -- QUOTE -- "IN FACT,
THE CURRENT STATUS OF THE CIRCUIT ACTUALLY SUPPORTS THE
ARGUMENT THAT THE COURT COULD DO THE JOB WITH A SMALLER
{16:55:27} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
COMPLEMENT THAN 11 JUDGES. AS SUCH THE CASE HAS NOT YET BEEN
MADE THAT THE CURRENT VACANCY SHOULD BE FILLED. THAT REMAINS
TRUE TODAY. THE FEDERAL CIRCUIT HAS 11 ACTIVE JUDGES NOW AND
FOUR SENIOR JUDGES. LET ME MENTION TO YOU THE COST OF A
JUDGESHIP. PEOPLE THINK WELL HOW MUCH DOES IT COST TO ADD NOR
JUDGE?
JUST ADD A JUDGE PAY THE SALARY IT IS $150,000 A YEAR THAT'S
NOT TOO BAD. THE COST OF A FEDERAL JUDGE IS $1 MILLION. THEY
{16:56:03} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
GOT TWO, THREE LAW CLERKS, SECRETARIES, OFFICE SPACE,
LIBRARIES, COMPUTERS, TRAVEL BUDGETS AND EVERYTHING THAT GOES
WITH BEING A FEDERAL APPELLATE JUDGE. IT IS AN EXPENSIVE
PROCESS. THAT NUMBER IS A LEGITIMATE NUMBER. $1 MILLION. AND WE
HAVE GOT JUDGES IN THIS COUNTRY WHO ARE OVERWORKED AND ARE
WORKING NIGHT AND DAY, BUT THIS CIRCUIT ISN'T ONE OF THEM. AND
I TELL YOU, BEFORE WE NOT FILL SOME OF THOSE VACANCIES, BEFORE
WE NOT ADD NEW JUDGES TO SOME OF THOSE DISTRIBUTES, THERE IS
NOT THAT MANY, BUT SOME ARE REALLY OVERWORKED, WE OUGHT TO
{16:56:36} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
THINK ABOUT WHETHER WE OUGHT TO CONTINUE A JUDGE WHERE WE DON'T
NEED IT. THE GRASSLEY REPORT ALSO DEALT WITH THE PROBLEM OF
MORE JUDGES THAN YOU NEED. SORT OF A COLLEGIALITY QUESTION
THERE. THIS IS WHAT THE REPORT SAID. JUDGE JOE FLAT, CHIEF
JUDGE AT THE 11TH CIRCUIT AT ONE TIME, TESTIFIED THAT SOME
SCHOLARS MAINTAIN A PERFECT APPELLATE COURT SIZE IS ABOUT SEVEN
TO NINE JUDGES. AND WHEN A COURT REACHES TEN OR LEVIN JUDGES,
{16:57:10} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
YOU HAVE AN EXPONENTIAL INCREASE IN THE TENSION ON THE COURT ON
THE ABILITY OF THE LAW AND THE ABILITY OF THE LAW TO BE
CERTAIN. JUDGES CLAIM THAT THERE IS A MARKED DECREASE IN
COLLEGIALITY WHEN THE APPEALS COURT IS STAFFED WITH MORE THAN
ELEVEN OR TWELVE JUDGES. CHIEF JUDGE POSE NER WHOM SENATOR
SCHUMER JUST QUOTED FROM RESPECTFULLY A MOMENT AGO, 7TH
CIRCUIT, CHIEF JUDGE THERE, THOUGHT WITH 11 JUDGES THE 7TH
{16:57:41} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
CIRCUIT WAS AT THE LIMIT OF WHAT A COURT OUGHT TO BE IN RMS OF
SIZE. I JUST HAVE TO POINT OUT THAT THE 7TH CIRCUIT HAD MORE
THAN TWICE AS MANY CASES PER JUDGE AS THE FEDERAL CIRCUIT DOES
TODAY. THE GRASSLEY REPORT FURTHER STATED THERE IS A CONSIST
TENLY COST WITH EXPANDING COURTS. NOT ONLY IS THERE A LOSS IN
COLLEGIALITY, THE LARGER A COURT BECOMES, THAT IS THE 10, 11,
12 JUDGES, THERE IS ALSO AN INCREASE IN WORK REQUIRED BY THE
{16:58:13} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
JUDGES TO MAINTAIN CONSISTENCY IN THE LAW. JUDGE WILL KERR SON
FELT MORE JUDGES WOULD NOT LIGHTEN THE BURDENS OF A COURT BUT
WOULD ACTUALLY AGGRAVATE THESE BURDENS EVEN MORE. SO, FEDERAL
CIRCUIT TO WHICH THIS JUDGE WOULD LIKE TO BE APPOINTED AND HE
WOULD BE A GOOD POSITION TO DRAW THAT BIG FEDERAL JUDICIAL
SALARY AND HAVE THE LOWEST CASELOAD THIS AMERICA, THE LOWEST
TERMINATION OF JUDGES FOR ANY CIRCUIT COURT OF APPEAL. IT HAS
{16:58:48} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
HAD A 16% DECREASE IN OVERALL CASELOAD. AND WITH A CLEAR
RECOMMENDATION FROM THE GRASSLEY SUBCOMMITTEE REPORT THAT THERE
IS NOT A NEED TO ADD ANOTHER JUDGE TO THIS SURKT. I WOULD
SUGGEST, MR. PRESIDENT, THAT WE NOT APPROVE THIS JUDGE. NOT
BECAUSE HE IS NOT A GOOD PERSON, BUT BECAUSE WE DON'T NEED TO
BURDEN THE TAXPAYERS WITH $1 MILLION A YEAR FOR THE REST OF HIS
LIFE TO SERVE ON A COURT THAT DOESN'T NEED ANOTHER JUDGE. IN
FACT, THEY COULD PROBABLY GET BY WITH TWO OR THREE LESS JUDGES
{16:59:25} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
THAN THEY HAVE RIGHT NOW. AND STILL THEY COULD PROBABLY TAKE
TWO JUDGES OUT OF THERE OR THREE, AND STILL HAVE THE LOWEST
CASELOAD PER JUDGE IN AMERICA. WE DON'T HAVE MONEY TO THROW
AWAY. PEOPLE ACT LIKE WELL A MILLION DOLLARS WHAT'S THAT?
A MILLION DOLLARS IS A LOT OF MONEY WHERE I CAME FROM. AND I
THINK WE OUGHT TO LOOK AT THAT AND PUT OUR MONEY WHERE WE GOT
TO HAVE SOME JUDGES, AND THERE ARE SOME OF THOSE AREAS. MR.
PRESIDENT, I WOULD THANK THE CHAIR FOR THIS TIME TO EXPRESS MY
THOUGHTS ON THE DYK MATTER AND WOULD YIELD THE REMAINDER OF MY
{16:59:59} (MR. SESSIONS) { NOT AN OFFICIAL TRANSCRIPT }
TIME TO SENATOR SMITH FROM NEW HAMPSHIRE.
{END: 2000/05/23 TIME: 17-00 , Tue. 106TH SENATE, SECOND SESSION}
{ NOT AN OFFICIAL TRANSCRIPT OF THE SENATE PROCEEDINGS.}