SO, IT'S CERTAINLY -- COULD I ASK UNANIMOUS CONSENT?
           
           

           THE PRESIDING OFFICER: ALL OF THE TIME OF THE PROPONENTS OF THE
           LYNCH NOMINATION HAS EXPIRED.
           

           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?
           
           

           THE PRESIDING OFFICER: HEARING NO OBJECTION, IT IS SO ORDERED.
           

           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

           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?
           
           

           THE PRESIDING OFFICER: THE SENATOR FROM ALABAMA.
           

           MR. SESSIONS: WHAT IS THE TIME LEFT ON THE LYNCH NOMINATION?
           
           

           THE PRESIDING OFFICER: FOUR MINUTES FOR THE SENATOR FROM
           ALABAMA. 1EGS SESSION VERY GOOD. MR. PRESIDENT, I WILL JUST--
           --
           

           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

           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

           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

           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

           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

           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

           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

           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

           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

           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

           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

           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

           -- 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

           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,

           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

           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

           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

           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,

           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

           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

           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

           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

           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

           TIME TO SENATOR SMITH FROM NEW HAMPSHIRE.
{END: 2000/05/23 TIME: 17-00 , Tue.  106TH SENATE, SECOND SESSION}