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COURTROOM USE: ACCESS TO JUSTICE, EFFECTIVE 

JUDICIAL ADMINISTRATION, AND COURTROOM 

SECURITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS AND 

COMPETITION POLICY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 29, 2010 

Serial No. 111–153 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

CHARLES A. GONZALEZ, Texas 

SHEILA JACKSON LEE, Texas 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

HOWARD COBLE, North Carolina 

JASON CHAFFETZ, Utah 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

BOB GOODLATTE, Virginia 

DARRELL ISSA, California 

GREGG HARPER, Mississippi 

CHRISTAL SHEPPARD, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 29, 2010 

Page 

OPENING STATEMENTS 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Chairman, Subcommittee on Courts and 

Competition Policy ............................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts and 

Competition Policy ............................................................................................... 6 

WITNESSES 

The Honorable Jim Cooper, a Representative in Congress from the State 

of Tennessee 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Mark L. Goldstein, Director, Physical Infrastructure, U.S. Government 

Accountability Office, Washington, DC 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 15 

The Honorable Michael A. Ponsor, U.S. District Judge, District of Massachusetts, and Chairman of the Judicial Conference’s Committee on Space and 

Facilities, Springfield, MA 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 33 

Mr. Robert A. Peck, Commissioner of Public Buildings, U.S. General Services 

Administration, Washington, DC 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

The Honorable Robert James Conrad, Jr., Chief U.S. District Judge, Western 

District of North Carolina, Charlotte, NC 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 54 

Ms. Judith Resnik, Arthur Liman Professor of Law, Yale Law School, New 

Haven, CT 

Oral Testimony ..................................................................................................... 67 

Prepared Statement ............................................................................................. 70 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Letter to the Honorable Barack Obama, President of the United States of 

America, from the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Chairman, Subcommittee 

on Courts and Competition Policy ...................................................................... 3 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of John F. Clark, Director, United States Marshals Service, Department of Justice ................................................................................... 104 

Page

IV 

Prepared Statement of Judge John M. Roll, Chief District Judge, District 

of Arizona .............................................................................................................. 109 

(1) 

COURTROOM USE: ACCESS TO JUSTICE, EFFECTIVE JUDICIAL ADMINISTRATION, AND 

COURTROOM SECURITY 

WEDNESDAY, SEPTEMBER 29, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS AND

COMPETITION POLICY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 4:11 p.m., in room 

2141, Rayburn House Office Building, the Honorable Henry C. 

‘‘Hank’’ Johnson, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Johnson, Gonzalez, Coble and Goodlatte. 

Staff present: (Majority) Christal Sheppard, Subcommittee Chief 

Counsel; Elizabeth Stein, Counsel; Rosalind Jackson, Professional 

Staff Member; (Minority) Blaine Merritt, Counsel; and John Mautz, 

Counsel. 

Mr. JOHNSON. This hearing will now come to order. Without objection, the Chair is authorized to declare a recess of the hearing. 

In the—the integrity of our judicial system relies on the promise 

of access to justice for all Americans. A central tenet of that promise is that the public must have trust that whatever they need or 

whenever they need access to the judiciary, it will be available. 

A recent GAO report—and I apologize for the disturbance behind 

me. I am a soft talker, and—yes, I got some competition. [Laughter.] 

We are now—we have got the proceedings going on in the House, 

which, of course, are very important, but we have got some important concerns today about justice. There we go. Somebody took me 

off the air. I guess you get what you ask for. 

All right. The integrity of our judicial system relies on the promise of access to justice for all Americans. A central tenet of that 

promise is that the public must have trust that whenever they 

need access to the judiciary, it will be available. 

A recent GAO report on courthouse space found over 3.56 million 

square feet of excess space in recent courthouse construction, which 

has led some to conclude that less funding should be allocated to 

courthouses. Others have argued that the GAO methodology and 

resulting recommendations are seriously flawed. 

However, today’s hearing is not about the GAO report itself, a 

matter that I have discussed at length in other forums. Instead, 

2 

this hearing is about the threat to access to justice and the risk 

that the report will be used as justification to cut funding for critical pending courthouse construction, limit security for our judiciary, litigants, and the visiting public, or mandate courtroom sharing without consideration of the factors that go into how courthouses are used to deliver justice. 

Access to justice is an issue that has concerned me for many 

years, through bills that I have introduced, including the Arbitration Fairness Act, and bills I have co-sponsored, such as the Open 

Access to Courts Act. I have consistently worked to open the courthouse doors. Congress—or to keep those doors open. 

Congress has a vital role to play in the process, and I look forward to working with all the Members of this Committee to address increasing access to our courts. The GAO report findings and 

the resulting calls to cut courthouse funding based on the report 

threaten the very nature of our constitutionally created three coequal branches of government. 

I emphasize that the three branches are intended to be coequal 

separate branches. This balance of power is disrupted when the 

legislative branch intrudes on how the judicial branch conducts its 

business, such as by dictating how much courtroom sharing there 

should be or how to calculate the number of judges needed to meet 

caseload demands. 

My concern on this matter is well established. Yesterday, I sent 

a letter to President Obama asking him to continue funding courthouse construction projects without regard to the flawed GAO report findings. I am entering a copy of this letter into the record. 

I urge the Judiciary Committee to also strongly weigh in at this 

juncture. 

[The information referred to follows:] 

3 

LETTER TO THE HONORABLE BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF

AMERICA, FROM THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND CHAIRMAN, SUBCOMMITTEE

ON COURTS AND COMPETITION POLICY


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While the GAO report applies a strict formulaic calculation to 

courthouse space, the Judicial Conference and Members of this 

Committee know that the use of courthouses is not merely about 

numbers. As a former magistrate judge, I am very cognizant of the 

many other factors that go into how courthouse space functions, including the security needs and impact on the delivery of justice 

that no numeric calculation can adequately capture. 

In light of the concerns raised by the GAO report that I have just 

detailed, I want to announce today that I am planning to visit several courthouses next month in order to access or assess for myself 

the state of courthouses that the judiciary believes to be in desperate need of funding, as well as a courthouse that has been recently built according to the judiciary’s stated needs. 


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I understand that Representative Eleanor Holmes Norton is very 

interested in courthouse funding, as well, and plan to work closely 

with her on this issue. I invite Representative Eleanor Holmes Norton and my colleagues on this Subcommittee and the Transportation and Infrastructure Subcommittee on Economic Development, 

Public Buildings, and Emergency Management to join me in this 

trip so we can fully appreciate and have a fruitful discussion on the 

needs of the judiciary, as well as why I believe the Judicial Conference so badly needs funding for continued courthouse construction. 

I now recognize my colleague, Mr. Coble, the distinguished Ranking Member of this Subcommittee, for his opening remarks. Thank 

you. 

Mr. COBLE. Thank you, Mr. Chairman. Appreciate you calling 

this hearing today. Good to have our colleague from Tennessee 

with us, as well. 

During my inaugural run for Congress, Mr. Chairman, I held a 

press conference to announce my intentions. A reporter in attendance asked why I was doing this. It was a straightforward question, so I chose a straightforward answer. I said I wanted to bring 

a sharp pencil to the Congress. And what I meant was, I intended 

to pursue a policy, agenda premised on less spending and lower 

taxes. 

Like it or not, that is still my philosophy. Some times it has 

worked out as intended; some times it did not. 

But today’s hearing, Mr. Chairman, compels us to examine the 

role of government in our lives and how much we are willing to pay 

for the services it provides. Our focus is on the judiciary, a critical 

component of our government. Without the rule of law and an independent judiciary to administer it, the biggest and meanest just get 

their way, but that is not the American way. 

Because we are a civil society that values settling differences 

peaceably, providing adequate resources for the Federal courts 

should represent a policy priority for Congress and the American 

people, as well. But no one, Mr. Chairman, gets the proverbial 

blank check, and this is where we may need to break out the sharp 

pencils. 

The Government Accountability Office released a study about 4 

months ago that suggests that our national courthouse construction 

program is fraught with waste. GAO alleges that the General Services Administration has not exercised appropriate oversight in administering the program for much of the past 10 years. 

GAO furthermore believes the Federal judiciary has contributed 

to these problems in two key respects: first, by not maintaining 

case law—caseload protection records, records that help in measuring future workloads, and the need for new judges; and, second, 

by failing to adopt more expansive courtroom sharing policies. 

The results, if accurate, are alarmingly stark. GAO asserts that 

we have overbuilt Federal courthouses by more than 3 million 

square feet. This equates to $835 million in unnecessary space, 

with an additional cost of 51 million to rent, operate and maintain 

the space. 

7 

The GAO study has generated buzz, to put it mildly, but its 

methodologies and findings have been questioned by others, including some of the witnesses who will testify today. 

To illustrate, the administrative office of the U.S. courts correctly 

notes, in my opinion, that is difficult to predict the judiciary’s 

courthouse needs when the size of the judiciary is a function of congressional action or inaction. How accurate can such predictions be 

if Congress creates new judgeships piecemeal as it has for the past, 

I would say, 2 decades? 

I am especially taken with the judiciary’s robust defense of its 

role in our civic life. They emphasize that it is inappropriate for 

GAO to judge them by applying new standards, such as courthouse-sharing strategies after the fact. The judiciary also maintained that the whole point of our courts is to dispense justice as 

expeditiously and as fairly as possible. How does a one-size-fits-all 

courtroom-sharing plan further justice? How does it promote the 

quick resolution of legal disputes? Are the Federal judicial events 

knowable and, therefore, predictable or not? 

So, Mr. Chairman, before we break out the sharp pencils, we 

need to delve into the facts and answer these and other questions. 

I don’t want to promote the wasteful spending of tax revenue, but 

neither do I want to embrace a pennywise and pound-foolish approach to providing our Federal courts with the resources they 

need to do their respective jobs. 

I look forward to participating in today’s hearing, Mr. Chairman, 

and I thank you, and I thank the witnesses for their attendance, 

and yield back. 

Mr. JOHNSON. I thank the gentleman for his statement. 

Without objection, other Members’ opening statements will be included in the record. I am now pleased to introduce the first panel 

witness for today’s hearing. 

Our first panel will be Representative Jim Cooper. Representative Cooper has represented Tennessee’s Fifth Congressional District since 2003 and is chair of the Congressional Courthouse Coalition Caucus of which, in full disclosure, I am a member. 

Representative Cooper sits on the Armed Services Committee 

and the Committee on Oversight and Government Reform. He is 

also an adjunct professor at the Owen School of Management at 

Vanderbilt University. 

Welcome, Representative Cooper. And, Representative Cooper, 

please begin your testimony. 

TESTIMONY OF THE HONORABLE JIM COOPER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mr. COOPER. Thank you, Mr. Chairman. 

Thank you to Ranking Member Coble, Mr. Gonzalez. I appreciate 

this opportunity to testify before your Subcommittee. It is a very 

important topic, to get the prioritization of Federal courthouses 

right, and I appreciate your interest in this important matter. 

The reason we formed the Courthouse Caucus, my friend, Jo 

Bonner, a Republican from Alabama—and we are very grateful, 

Mr. Chairman, that you have joined the caucus—we wanted to get 

congressional support behind an objective, fair way of building new 

courthouses in America, instead of what sometimes characterizes 

8 

the old-fashioned pork-barrel process of just those who have the 

most political clout grabbing the Federal dollars and building whatever they want to build. 

I think that the Federal judiciary has done a responsible job of 

trying to identify their needs and to have a rational plan for moving forward to construct new buildings. So the Courthouse Caucus 

is devoted to that task. We have 16 members. And in this last 

budget cycle, we succeeded on getting the top five priority courthouses on the list for construction, which was something of a novelty in this body. 

Things like that shouldn’t be news, but it is nice when the Federal judiciary’s needs are actually identified and responded to by 

this coequal branch of government. 

I have a selfish interest in this. I represent the Nashville area, 

and we have been identified as a needy courthouse area since the 

early 1990’s. Current occupants of that building, not only the Federal judiciary, but also other Federal agencies, have had to put up 

with leaky windows and poor heating and air conditioning and, 

worse than that, security issues that include unreasonable delays 

and trials and unreasonable causes for new trials, because, for example, when we are unable to get defendants into the courtroom 

outside the view of jurors, and the jurors see the defendant shackled, manacled, that can prejudice the jury and cause a demand for 

new trials. 

So it is very important that we have adequate facilities so that 

the rights of all parties can be protected, whether it is the prosecution or the plaintiff or the defendant. And to have a building in 

which jurors are notified that they have to wear overcoats because 

it is going to be so cold inside the building or so hot on a summer 

day that you have to put in back box fans, these are conditions that 

really are beneath the dignity of the Federal judiciary. 

I think that the system of American law is the best in the world, 

and we need buildings that demonstrate the strength and stability 

of that system. 

We in Nashville are not greedy. We have waited now 15, 20 

years to have our chance. We understand according to some lists, 

we are now number two on the list. Other lists put us at number 

six. We are patient folks. We just want the decision to be made, 

whether it is for Nashville or anywhere else in America, on the 

merits, objectively, using real criteria for caseloads, other needs of 

the Federal judiciary. 

So I am very grateful for your interest in this area. I would ask 

that my statement as written be put into the record. And I would 

be happy to help you and to dedicate the resources of the Courthouse Caucus to help the efforts of this Committee, because this is 

a very important thing that we get right and get right soon, because we all are aware of the need for jobs in our country. Building 

courthouses that are genuinely needed is the best way to help 

produce some of those jobs. 

So thank you, Mr. Chairman, for your interest in this important 

topic. 

[The prepared statement of Mr. Cooper follows:] 

9 

PREPARED STATEMENT OF THE HONORABLE JIM COOPER, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE


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Mr. JOHNSON. Thank you, Representative Cooper, for your work 

toward making sure that justice is not delayed so as to deny justice. Justice delayed is justice denied. And justice that comes under 

the conditions that you just spoke of is—I have to apologize for 

those conditions being in existence for the last 20 years. And I am 

not even responsible. But it is—that is sobering to hear of those 

kinds of conditions. 

Now—— 


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Mr. COOPER. Mr. Chairman, we would like to invite you to Nashville. You mentioned you would be visiting some Federal courthouses, but you have a welcome—strong welcome in our community if you would like to see firsthand the conditions in our current 

courthouse. 

Mr. JOHNSON. I am going to take you up on that, and my wife 

will be happy to hear that. She is from Nashville. And that will 

cause us to have to leave a day early to get up there or stay a day 

later, either one. So we will do that. Thank you. 

Mr. COBLE. Mr. Cooper, can we go to the Opry while we are 

there? 

Mr. COOPER. Whatever you would like. You are both my good 

friends. We are going to invite Mr. Gonzalez, too. We will have the 

whole Subcommittee come down, because we want you to see firsthand the real conditions on the ground, because that is the best 

way to make policy. 

Mr. JOHNSON. Thank you, Representative Cooper. And now we 

will begin our second panel. 

And, Representative Cooper, let it not be said that you are not 

one of those very powerful Members of Congress. We know better 

than that. So thank you for waiting your turn in line, instead of 

bogarting. 

Good afternoon, everyone. Our first witness on the second panel 

will be Mr. Mark Goldstein. Mr. Goldstein is the director of physical infrastructure issues for the Government Accountability Office. 

He is responsible for GAO’s work in the areas of government, property and telecommunications. 

Mr. Goldstein has held other public-sector positions, serving as 

deputy executive director and chief of staff to the District of Columbia Financial Control Board and as a senior staff member of the 

United States Senate Committee on Governmental Affairs. 

Prior to government service, Mr. Goldstein was an investigative 

journalist and author. We welcome him here today. 

Our second witness will be the Honorable Michael Ponsor. Judge 

Ponsor is a United States district judge for the district of Massachusetts and chairman of the Judicial Conference Committee on 

Space and Facilities. Judge Ponsor was nominated by President 

Clinton in 1993 and prior to that was a United States magistrate 

judge for the District of Massachusetts. 

We welcome him here today. 

Our next witness will be Commissioner Robert Peck. Commissioner Peck has served as the commissioner of the public buildings 

for the United States General Services Administration since 2009. 

He is responsible for the design, construction and building management for 362 million square feet of government-owned and-leased 

space. 

Prior to serving in this position, he worked at the Office of Management and Budget, the National Endowment for the Arts, and 

the Federal Communications Commission. Commissioner Peck also 

served as an associate counsel to the Senate Committee on Environment and Public Works and was chief of staff to the late U.S. 

Senator Daniel Patrick Moynihan. 

Welcome, Commissioner Peck. 

12 

Fourth witness will be the Honorable Robert J. Conrad. Judge 

Conrad is a U.S. district judge for the Western District of North 

Carolina. Judge Conrad served as a Federal prosecutor for over a 

decade and gained national attention when he was named chief of 

the U.S. Department of Justice Campaign Financing Task Force in 

2000. Prior to becoming a Federal judge, Judge Conrad served as 

a U.S. attorney for the Western District of North Carolina. 

We welcome Judge Conrad to our panel today. 

And our final witness will be Professor Judith Resnik. Professor 

Resnik is the Arthur Liman Professor of Law at Yale Law School, 

where she teaches about federalism, procedure, feminism, and local 

and global interventions to diminish inequalities and subordination. Professor Resnik is the author of many articles on federalism 

and the Federal courts and recently argued before the Supreme 

Court. She is the founding director of Yale’s Arthur Liman Public 

Interest Program and Fund. In 2008, she received the Fellows of 

the American Bar Association—excuse me—American Bar Foundation Outstanding Scholar of the Year Award. And we welcome her 

here today. 

Thank all of you for your willingness to participate in today’s 

hearing. And without objection, your written statements will be 

placed into the record. 

And we would ask that you limit your oral remarks to 5 minutes. 

You will note that we have a lighting system that starts with a 

green light. At 4 minutes, it turns to yellow, then to red at 5. After 

each witness has presented his or her testimony, Subcommittee 

Members will be permitted to ask questions, subject to the 5- 

minute limit. 

Mr. Goldstein, please proceed. 

TESTIMONY OF MARK L. GOLDSTEIN, DIRECTOR, PHYSICAL 

INFRASTRUCTURE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC 

Mr. GOLDSTEIN. Thank you, Mr. Chairman and Members of the 

Subcommittee. Thank you for inviting us here today to discuss the 

results of our report on the Federal courthouse construction program, which we issued June 21, 2010. 

Since the early 1990’s, GSA and the judiciary have undertaken 

a multi-billion-dollar courthouse construction initiative that has resulted in 66 new courthouses or annexes with 29 additional 

projects in various stages of development. However, rising costs 

and other Federal budget priorities threaten to stall this initiative. 

This testimony, based on our report, discusses for 33 Federal 

courthouses completed since 2000, one, whether the courthouses 

contained extra space and any costs related to that space; two, how 

the actual sizes of the courthouses compare with congressionally 

authorized sizes; three, how courthouse space based on the judiciary’s 10-year estimates of the number of judges compares with 

the actual number of judges; and, four, whether the level of courtroom-sharing supported by data from the judiciary’s 2008 study of 

district courtroom-sharing could have changed the amount of space 

needed in these courthouses. 

In general, our findings are as follows: 33 of the—32 of the 33 

Federal courthouses completed since 2000 include extra square feet 

13 

of space, totaling 3.5 million square feet overall. This space represents about nine average-sized courthouses. The estimated cost 

to construct this extra space, when adjusted to 2010 dollars, is 

$835 million. And the annual cost to rent, operate and maintain it 

is $51 million. 

The extra space and its causes are, first, 1.7 million square feet 

caused by construction in excess of congressional authorization; 

887,000 square feet caused by the judiciary overestimating the 

number of judges that the courthouses would have in 10 years; 

and, three, 946,000 square feet caused by district and magistrate 

judges not sharing courtrooms. 

In addition to higher construction costs, the extra square footage 

in these 32 courthouses results in higher annual operating and 

maintenance costs, which would largely pass on to the judiciary 

and others as rent. Based on our analysis of the judiciary’s rent 

payment to GSA for these courthouses at fiscal year 2009 rental 

rates, the extra courtrooms and other judiciary space increases the 

annual rent payments by $40 million. 

In addition, our analysis estimates that the extra space cost 

about $11 million in fiscal year 2009 to operation and maintain. 

I should note that GSA cited concerns with our methodology. Our 

methodology applied GSA’s policies and data directly from original 

documents and sources, and our cost estimation methodology balanced higher and lower cost construction spaces to create a conservative estimate of the costs associated with the extra space. 

We believe that our findings are presented in a fair and accurate 

way and illustrate how past problems with the courthouse program 

could affect future courthouse programs and projects. 

Our second major finding was that, of the 33 courthouses built 

since 2008, 28 have reached or passed their 10-year planning period, and 23 of those 28 courthouses have fewer judges than estimated. For these 28 courthouses, the judiciary has 119 or approximately 26 percent fewer judges than the 461 it estimated it would 

have, resulting in approximately 887,000 extra square feet. The 

extra square feet includes courtroom and chamber suites, as well 

proportional allocation of additional public, mechanical spaces, and 

sometimes secure inside parking spaces in new courthouses. 

Our third major finding indicates that courtroom sharing could 

have reduced the number of courtrooms needed in 27 of 33 district 

courthouses built since 2000 by a total of 126 courtrooms, about 40 

percent of the total number of district and magistrate courtrooms 

constructed since 2000. 

In total, not building these courtrooms, as well as their associated support, building, common, and other spaces, would have reduced construction by approximately 940,000 square feet. According to the judiciary’s data, courtrooms are used for case-related proceedings—accorded the available time or less than average. Using 

the judiciary’s data, we applied generally accepted modeling techniques to develop a computer model for sharing courtrooms. The 

model ensures sufficient courtroom time for all case-related activities, all time allotted to non-case-related activities, such as preparation time, ceremonies, and educational purposes, and all events 

canceled or postponed within a week of the event. 

14 

The model shows the following courtroom-sharing possibilities: 

Three district judges could share two courtrooms; three senior 

judges could share on courtroom; and two magistrate judges could 

share one courtroom, with time to spare. 

During our interviews and convening an expert panel on courtroom-sharing, some judges remain skeptical of sharing and raise 

potential challenges to courtroom-sharing, but other judges with 

sharing experience say they have overcome those challenges when 

necessary without postponing any trials. 

The primary concern judges cited was the possibility that all 

courtrooms could be in use by other judges and a courtroom might 

not be available. To address this concern, we programmed the 

model to provide more courtroom time than necessary to conduct 

court business. 

In our report, we recommended that the administrative GSA 

take the following three actions: one, establish sufficient internal 

control activities to ensure that regional GSA officials understand 

and follow GSA space measurement policies; two, to avoid requesting inefficient space for courtrooms—insufficient space for courtroom space on the any court model, to establish a process in cooperation with the AOUSC by which the planning for the space 

needed for courtrooms takes into account GSA’s space measuring 

policies; three, report to congressional authorizing committees 

when the design of a courthouse exceeds the authorized size by 

more than 10 percent. 

We also recommended that the AOUSC, on behalf of the Judicial 

Conference, take the following three actions: retain caseload projections for at least 10 years for use in analyzing the accuracy and 

incorporating additional factors into judiciary’s 10-year judge estimates; two, expand nationwide courtroom-sharing policies to more 

fully reflect the actual scheduling and use of district courtrooms; 

and, three, to distribute information and judges on positive practices that judges have used to overcome challenges to courtroomsharing. 

This concludes my testimony, sir. I am pleased to answer any 

questions that you or other Members of the Subcommittee may 

have. Thank you. 

[The prepared statement of Mr. Goldstein follows:] 

15 

PREPARED STATEMENT OF MARK L. GOLDSTEIN


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Mr. JOHNSON. Thank you, sir, for your testimony. 

Judge Ponsor, please proceed. 

TESTIMONY OF MICHAEL A. PONSOR, U.S. DISTRICT JUDGE, 

DISTRICT OF MASSACHUSETTS, AND CHAIRMAN OF THE JUDICIAL CONFERENCE’S COMMITTEE ON SPACE AND FACILITIES, SPRINGFIELD, MA 

Judge PONSOR. Thank you. 


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My name is Michael Ponsor. I am the United States district court 

judge for the District of Massachusetts, Western Division. I have 

been a district court judge for 17 years and a magistrate judge for 

10 years before that. I want to thank you, Mr. Chairman, Ranking 

Member Coble, and other Members of the Committee for having us 

here today to speak about these very important issues. 

I also want to note that my colleague, Judge Conrad, from the 

Western District of North Carolina, will be picking up on some of 

the themes I will touch on. 

I also want to thank particularly Congressman Jim Cooper for 

coming here today and, in his written comments and oral comments, articulating so eloquently the concerns that I will also try 

to address here today. 

My message to this Committee is very simple: We need assistance from your Subcommittee in facing what I think is a very 

grave situation which threatens the shutdown of the national Federal courthouse construction project. This shutdown will threaten 

access to justice for millions of Americans, compromise judicial administration, jeopardize courtroom security, and waste potentially 

millions of dollars. 

Let me give you some background on these comments. On May 

25th, as Mr. Goldstein indicates, we both appeared before the Subcommittee on Economic Development, Public Buildings, Emergency 

Management to discuss the GAO report. 

We had a vigorous debate about that, and I am pleased that the 

Committee Members are aware of our differences with the GAO report. I consider the report to be largely nonsense, and the three 

justifications supporting the supposed waste of public money to be 

very disturbing, unfair, and untrue. 

I don’t want to get into all the reasons why I think that report 

went so far astray, because I want to use my time for something 

more important, but I am happy to address in detail any questions 

you may have about that. 

One point I will make is that, although we consider the GAO report to be terribly unfounded, poorly done, deeply unfair, we agreed 

with all of the concrete recommendations that were made in the 

GAO report. We agreed that we had either already implemented 

them or would implement them with one possible exception, which 

I may touch on now. 

The GAO report discussed the possibility of courtroom-sharing 

and came up with models for courtroom-sharing that, frankly, had 

not only me, but the entire Federal judiciary aghast. The notion, 

as they suggested, that three active district court judges carrying 

caseloads of 400 to 500 civil cases, 100 to 200 criminal cases, three 

active district court judges could share two courtrooms and provide 

the sort of justice that Americans expect and deserve was shocking. 

We asked for their backup, their modeling for this, and we waited 4 months to get it. They repeatedly said that they used our 

data, but we knew what our data was, but we wanted to know 

what—how did they cook it? 

And we did on September 17th finally get a copy of their report 

from their modeling version. The man who was responsible for handling their modeling is a gentleman named Mr. Higgins, who is a 

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ground includes modeling consumer soap production, construction 

of John Deere tractors, and the extraction of nickel from granite 

ore. 

The particular group that they had run the modeling had virtually no experience in court-type procedures. They knew about 

conveyor belts, robotics, tractors, and various other things. These 

were the people that they trusted to develop these models for courtroom-sharing, to tinker with the heart of the American constitutional system and to come up with this notion that two courtrooms 

were sufficient for three active district court judges, six for nine, 

nine for 12, and to blame us by retroactively applying this supposed policy and accuse us of overbuilding 946,000 square feet of 

courtroom space since 2000 because we did not adopt this ridiculous notion of courtroom-sharing. 

We looked into it further. And let me tell you how they went 

about deciding that we could have two courtrooms for every three 

district court judges. They simply took the 10-hour day—they said 

that Federal courts are in session from 8 a.m. in the morning until 

6 p.m. That is right in their report. Ten hours a day, the average 

district court judge is in court for 6 hours. So multiple six times 

three, that is three judges, you get 18. Two courtrooms, 10 plus 10 

equals 20, 18 goes into 20. Therefore, three district court judges 

can use two courtrooms. 

No consideration of continuances. No consideration of emergencies. No consideration of issues such as border states. This is 

how they came up with their courtroom-sharing model. 

Since then, things have gotten to be even more gray, because, as 

you know, there was a letter that went out on August 2nd from the 

Subcommittee on Economic Development, Public Buildings and 

Emergency Management saying that we should stop, shut down the 

entire Federal courthouse program nationally, until we engage in 

the sort of robust courtroom-sharing that was, frankly, absurdly 

suggested in the GAO report. 

The impact would be devastating. This is the judiciary’s 5-year 

plan. These are courthouses that have all been waiting at least 10 

years. There is no debate that every single one of those courthouses 

is desperately needed. We are talking about Los Angeles, Mobile, 

Nashville, Savannah, San Jose, San Antonio, Charlotte, Greenville, 

Harrisburg, Norfolk, Virginia, Anderson, Alabama, Toledo, Ohio, 

Greenbelt, Maryland. Every single one of those communities is 

waiting for a courthouse, and now we are faced with the suggestion 

that we should stop everything and keep these communities from 

getting the judicial resources that they need, hold up this plan, 

shut everything down, make people wait. 

This has an insidious effect on litigants. Imagine you have suffered a violation of your civil rights, you have suffered some affront 

to yourself. Are you going to ask yourself, can I go into court? Will 

I have to wait? Will I get a firm trial date? 

You are an assistant U.S. attorney deciding to initiate prosecutions. Will you have the resources to bring them? 

Security is threatened. Just a few months ago, we had an incident in Las Vegas that happened to be a courthouse that was secure, had a very courageous court security officer died defending 

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that courthouse. If that courthouse had not had—proper security, 

we would have had many more people dying. 

Money is being wasted. Right now, we have a courthouse in Salt 

Lake City that the money has appropriated. They are not even on 

our 5-year list. We are ready to go with that courthouse plan. Because of the downturn in the economy, we can save $25 million if 

we begin that courthouse project now. The money is not being appropriated. We are losing that opportunity to save funds. 

We ask—I will end where I started—we ask that we not allow 

these types of bricks and mortar issues to absorb and digest important values in our constitutional system, and we would appreciate 

any help this Subcommittee can give us. I would be happy to answer questions. 

[The prepared statement of Judge Ponsor follows:] 

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PREPARED STATEMENT OF THE HONORABLE MICHAEL A. PONSOR


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Mr. JOHNSON. Thank you, Judge Ponsor. 

Next, Commissioner Peck, please begin. 


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TESTIMONY OF ROBERT A. PECK, COMMISSIONER OF PUBLIC 

BUILDINGS, U.S. GENERAL SERVICES ADMINISTRATION, 

WASHINGTON, DC 

Mr. PECK. Thank you, Mr. Chairman, Ranking Member Coble, 

and Representative Gonzalez. I am Robert A. Peck. I am commissioner of the GSA Public Building Service. 

As you—as you noted, Mr. Chairman, we—we own or lease 360- 

some-million square feet of space in communities all across this 

country, and we provide space for more than 100 Federal agencies, 

law enforcement agencies, the military, the social service agencies 

that help our citizens. And we are prouder of none of them than— 

than the judiciary and our role in providing space for them. 

Federal courts play a critical role in the constitutional framework 

of our democracy. We are proud that for the past 15 years in particular we have been building courthouses worthy of that role, worthy of the American people, and worthy of the communities in 

which our courthouses are built. 

Courthouses are traditional landmarks dating back way before 

the founding of our country. They have in our country, however, 

whether state, local or Federal, often been the center of gathering 

and the symbols of our democracy. 

The Federal courthouses in particular must support the Federal 

judiciary’s mission of ensuring fair and impartial administration of 

justice for all Americans while providing security for judges, jurors 

and others engaged in the judicial process. This makes for complicated buildings and, yes, higher costs than the ordinary commercial office building. 

GSA has developed a strong partnership with the Federal judiciary. Since we began our design excellence program and Congress 

began funding a nationwide program of courthouse renovation and 

construction, we have compiled a solid track record of—of delivering high-quality buildings that support the court’s unique needs 

while enhancing the building’s surroundings. We do so within carefully considered design and budgetary guidelines and pursuant to 

congressional authorization and appropriation. 

Thank you for having this hearing today and focusing on the importance of these buildings and the effective administration of justice. We support the judiciary in carrying out this mission by constructing courthouses that allow them expeditiously and impartially to adjudicate cases for the American people. 

The courthouses that we construct are economic, given their mission, sound and prestigious. We work with the Federal judiciary to 

develop requirements to meet their needs. Since 1996, as Judge 

Ponsor alluded to, the judiciary has used a 5-year plan to set priorities on new courthouse construction projects, and we have followed 

it as best we can. 

We use the plan to develop project requirements in size and in 

cost that meet the needs of the courts. These requirements result 

in requests to Congress for authorization and appropriations. Since 

the program’s inception, 67 new courthouses or annexes have been 

constructed, and Congress has authorized and appropriated approximately $7.5 billion for this program. 

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We are continuing to improve our work on this program. In particular, we are improving the energy efficiency and resource use of 

the courthouses that we are building. 

We have established multiple layers of management and control 

to make sure that the costs of our courthouses are within guidelines. We stay within the statutory threshold of 10 percent of appropriated and authorized funding levels, or we notify Congress accordingly. 

We have maintained the—the space requirements that—that we 

have presented to the Congress to the best of our ability. We have 

agreed, in line with the GAO report, that we will notify the Congress when space exceeds 10 percent of the amount that we initially reported to Congress. 

And I want to be clear: Sometimes there is a difference in the 

space that we initially provide to Congress as an estimate of courthouse needs because, as design becomes more detailed and we get 

closer to the point where we can construct and we have an actual 

site—which we often don’t have when we first report to you—when 

we have an actual site, we can then tell exactly how much the 

space is going to be. 

We are, in fact, reporting to Congress any deviation in that size. 

Whether it is 10 percent or not, we just want to err on the side 

of total transparency. 

We give the courts a lot of credit for the fact that they have over 

the years agreed to share courtrooms among certain judges, senior 

judges and magistrates, and that has allowed us to build slightly 

smaller buildings. 

We have made important strides in improving the courthouse 

program, and we believe that the GAO report ignores the strides 

we have made, and I won’t repeat what Judge Ponsor said, other 

to say, if I can characterize it, the GAO report exhibits breathtaking ignorance of basic construction methods and construction 

cost methodologies, leading to ludicrous conclusions. And for an 

agency that was founded in accounting, I can tell you that basically 

they have double-counted in trying—in figuring out how much the 

so-called empty space in our buildings contains. 

Our concerns with the report, to be more specific, are GAO used 

a space measure that assumes that upper space in building 

atriums is included in the gross square footage of an asset. That 

is simply not true. And no matter what measuring standards you 

use, take a look at this room. It has a certain volume. It only has 

one floor. We count the square footage of the floor. 

GAO compounded this erroneous assumption by ascribing inflated operating and construction costs to the empty volumes and 

retroactively applied a methodology of ‘‘courtroom-sharing’’ to 

buildings designed in some cases more than a decade ago and predating the inclusion of courtroom-sharing in the design guide. 

Most egregiously, the GAO report could be read to assert that 

GSA has neglected willfully congressional direction in the courthouse program. It is categorically not true. We have sought and followed regular authorizations and appropriations and reported regularly to the Congress on our programs. 

We are always happy to consult with anyone on doing better in 

running this program, but we are proud of what we have done to 

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date and will hopefully be able to work with you and the Transportation and Infrastructure Committee in making this program even 

better. Thank you very much. 

[The prepared statement of Mr. Peck follows:] 

PREPARED STATEMENT OF ROBERT A. PECK


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Mr. JOHNSON. Thank you, sir. 

Judge Conrad, please. 

And, yes, your microphone, and pull it closer. 

TESTIMONY OF ROBERT JAMES CONRAD, JR., CHIEF U.S. DISTRICT JUDGE, WESTERN DISTRICT OF NORTH CAROLINA, 

CHARLOTTE, NC 

Judge CONRAD. I speak to you with 5 years of experience as a 

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cated in Charlotte, as well as 15 years of previous experience as 

an assistant U.S. attorney and as a U.S. attorney, 20 years combined practice in the Federal court in Charlotte, North Carolina. 

And I come to you today not to whine, but to inform you about 

what it is like in the field in our Federal courts. We, like the court 

in Nashville, Tennessee, which Congressman Cooper addressed, are 

on the 5-year plan. We have been on the plan for nearly 20 years. 

I am the third chief judge in our district during the time period 

that we have been on the 5-year plan. My predecessor, Chief Judge 

Rupoli, comments on that posture as being in the 12th year of a 

3-year design program. 

We have patiently waited in line, but the line never moved. And 

the lack of movement in the line affects the delivery of justice in 

the Western District of North Carolina in significant ways. And I 

am going to speak about three of those ways, the issue of courtroom-sharing, the issue of court security, and the issue of the deteriorating conditions in our buildings. 

I believe that Congressman Coble knows that our courthouse is 

located—is an old historic building, built in 1915, renovated in the 

1930’s, and it contains only two courtrooms for a city the size of 

Charlotte, with a very complex civil docket and a very aggressive 

U.S. attorney’s office. 

We have applied the concept of courtroom-sharing. We have more 

judges than courtrooms in Charlotte. And I want to tell you about 

our experience. 

Courtroom-sharing is an art, not a science. Our district court 

judges try to schedule around each other so that we don’t intrude 

on each other’s work. And one of the ways we have attempted to 

do that—we have more judges than courtrooms, and so we have on 

occasion commandeered our magistrate judges’ courtrooms. 

Chairman Johnson, you spoke about your past as a magistrate 

judge. One of our magistrate judge courtrooms has a jury box, but 

the design of that courtroom is such, it is an L-shaped design. It 

is a very small courtroom. It was not designed for district court 

work. But out of necessity, in an attempt to handle our docket, we 

sometimes use that courtroom. 

Some of the attorneys cannot see all of the members of the jury. 

The jury has a hard time seeing the witness box on the other side 

of the courtroom. The witness box in this courtroom is several feet 

from the trial bench, which is not that elevated. It is 5 feet from 

the defense table. And it is inches away from an exit door. It is so 

woefully inadequate the security concerns coming out of that situation are obvious. 

Many of the criminal cases that we pursue involve cooperating 

witnesses hoping to get a reduction in sentence as a result of their 

cooperation. They are testifying against defendants seated just feet 

away from them. I don’t think this is the model of the confrontation 

clause our founders anticipated. It is a security concern. 

We have trouble when we have had to handle civil cases in that 

courtroom, as well. We have had civil cases involving numerous attorneys—attorneys and trying to pack them into a very small courtroom has created difficulties in our administration of justice. 

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room usage, and within the last couple of years, I had a situation 

where I had the courtroom for a week, and another judge was 

scheduled to try a jury trial the next week. 

And so what I tried to accomplish was to try two criminal trials 

in a 1-week period of time. The first trial involved about seven robberies and a shooting involving injury. It was a complex case. We 

kept the jury until 6 o’clock every night, dealt with trial motions, 

both after the jury left for the night and the morning before the 

trial. 

But nonetheless, that trial took longer than expected. In order to 

handle my docket, on the fourth day of trial, we instructed the 

jury—and then I gathered the court reporter, the marshals, the 

probation officers, and we walked down the hall to the second 

courtroom that I previously spoke about, the L-shaped courtroom 

that is so problematic, and we began a second trial, an armed drug 

deal transaction and started selecting a jury and putting on the 

evidence in that—in that trial while the jury was deliberating in 

the first trial. 

And the jury in the first trial had a series of questions. In order 

to answer their questions, I had to march back down the hall into 

the first courtroom, with all the assembled staff. The marshals had 

to escort the defendant from trial number two downstairs to a holding cell and bring the first two defendants up. We answered the 

questions, and the marshals had to reverse the process, bring two 

defendants in custody down in an elevator to a holding cell, pick 

up the defendant for the second trial, and escort him to that trial, 

all in order to get our work done, in order for a second judge to 

start a trial the following Monday. 

That is extremely problematic for us. We exhausted our court reporter. The marshals were strained to capacity, while we were 

dealing—going back and forth, two different juries had to waste 

time waiting for us to resolve business in the other court, and the 

victims and their family members, defendants and their family 

members were all inconvenienced, not to mention the stress it put 

on the trial court attempting to administer justice in both those situations. 

That has been my experience anecdotally. My colleagues have reported similar concerns. We sometimes double-booked the courtroom, anticipating that many trials will resolve without trial. When 

that hasn’t happened, on one occasion, we had to assign court space 

in state county courthouse and try a case there. 

Now, my conclusion from all of this is that we have tried courtroom-sharing, and it doesn’t work. 

I want to speak about security concerns. In our old historic building, we share everything. And I am not saying that in a positive 

light. The restrooms are shared. Our courthouse staff, the public, 

members of defendant families, victims, agents, lawyers, even 

grand jurors, even newspaper reporters all share the same restroom space. 

We share an elevator. There is one elevator in our building used 

to transport incarcerated prisoners and witnesses. Our staff uses 

that elevator, as well. 

Now, the only reason a defendant is in custody is either the 

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other judge has found that that person is a flight risk or a danger 

to the community. Nonetheless, those who have been found to be 

such regularly use the same elevators as our courthouse staff. 

Our corridors are probably are worst security concern. The people leave our courtroom at the end of a trial or a hearing. They go 

into a corridor that contains chambers, clerk’s office, and other 

court personnel. 

Oftentimes after a sentencing hearing, emotions run high, but 

agents, lawyers, members of defendant families all exit in the same 

way at the same time, and there have been numerous occasions 

where marshals have had to break up verbal arguments between 

competing parties. 

I want to mention an experience I had as a sentencing judge in 

which I sentenced a gang member to a mandatory minimum sentence. And as I exit our courtroom, I exit—my exit is within feet 

of the door through which the marshals escort incarcerated defendants to the elevator for transport down to the holding cell. 

It is not uncommon for me to be exiting the courtroom about the 

same time as a criminal defendant. And in this one situation after 

I had just sentenced a defendant, we both got into the hallway together, walked side by side, and I was glad that I reached the end 

of the hall and turned left, as the defendant asked the marshal 

how much of that 20 years he was going to have to serve. And I 

was glad that I got to the turning point before the marshal told 

him that there is no parole in the Federal system. 

That kind of situation, where judges who have to sentence the 

people or conduct other very serious business, and then have to 

share corridor space, elevators, and other public facilities is untenable. 

We have a sally port in our old building, where the defendants 

are brought in from local custody. It is open to public view. And 

the sally port is within a couple parking spaces of where the judges 

park their vehicles. 

All of this to say that we have been on a list for a number of 

years, we have serious security concerns, and they are impacted by 

the failure to get the appropriate funding. 

And then as time has passed, our very historic building has deteriorated. And this is not a criticism of GSA. They have been very 

responsive to us. 

But years ago, thinking we were going to build a Federal courthouse, we swapped our courthouse with the city of Charlotte for 

prime upstate—or uptown real estate. We thought we would be 

constructing a courthouse soon. They thought they could use our 

existing courthouse for a law school. 

But we are still in our building. Our land is an uptown parking 

lot. And we pay rent to the city of Charlotte to be in our building 

because we haven’t been able to construct our new courthouse. 

Not much incentive on GSA’s part to pour—to pour money into 

an old money when you don’t own it and you expect to move from 

it soon. And our old courthouse was never built with modern security concerns, with 21st-century technology development in mind, 

antiquated, deteriorating. At one particular sentencing hearing, the 

roof literally fell in on the defendant. There was a piece of ceiling 

53 

tile that fell on the defendant’s table as I was conducting the sentencing hearing. 

We have buckets strategically placed in our courtroom to catch 

the rain falling from the leaky roofs. I use a Mac Air laptop when 

I am in court. To my right is a computer monitor that allows me 

to get live transcripts. But beyond this technological facade are 

problems that we deal with in a very archaic way. Within 5 feet 

of my bench, we have buckets that catch the rain that leak through 

the roof when we have a storm. You know, and Mondays are interesting after a rainy weekend in our courtroom. 

My conclusion is this. I serve on the Judiciary Committee’s space 

and facilities committee, subcommittee. And I have learned that 

Charlotte is not unique. Everyone on our 5-year plan has been 

there for a decade or more. 

Our tripartite form of government requires that before justice is 

done and the Federal criminal arena, the executive branch has to 

prosecute and the legislative branch has to appropriate. As your coequal branch, we ask you to fund the construction of badly needed 

courthouses and to do in a manner that permits maximum flexibility to our use of and access to the courtroom. 

Thank you. 

[The prepared statement of Judge Conrad follows:] 

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PREPARED STATEMENT OF THE HONORABLE ROBERT JAMES CONRAD


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Mr. JOHNSON. Thank you, Judge Conrad. I believe your 5 minutes has expired. [Laughter.] 

Next we will hear from Professor Resnik. 


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TESTIMONY OF JUDITH RESNIK, ARTHUR LIMAN PROFESSOR 

OF LAW, YALE LAW SCHOOL, NEW HAVEN, CT 

Ms. RESNIK. Thank you, Mr. Chairman, Ranking Member, Members of the Committee. My name is Judith Resnik, and I am the 

Arthur Liman Professor of Law at Yale Law School. 

I am very honored to participate in this hearing. I have been a 

guest at symposia convened by the GSA and by the GAO and by 

the administrative office, and I am happy to have a chance to participate and comment here. And I want to make three points in 

these 5 minutes. 

First, in 1850, there was not a single Federal building owned by 

the United States government that had the name ‘‘U.S. Courthouse’’ on the front door. There were fewer than 40 judges at the 

trial of the lower levels around the United States, and there were 

about 50 Federal Government buildings, Marine hospitals, and customs houses. 

Today there are more than 550 buildings that include the name 

‘‘U.S. Courthouse.’’ And why are there those new buildings? Because in a deep way, over the last 150 years, this country has been 

on the forefront of inventing adjudication as an important part of 

a functioning democracy. 

We can take for granted the courts, but in some way, the courts 

as we inhabit them are new in some respects. We have had independent judges for the last 250 years through our Constitution. 

Our Constitution and state constitutions guarantee rights, r-i-g-ht, of access, public access to the courts that have to be open, moving 

old rituals or rites—r-i-t-e-s—and spectacles of former governments 

into absolute obligations that we have a right to watch our government and our judicatory processes. 

Fairness, as an independent idea of equal dignity among the litigants and between the court and the litigants, is a relatively new 

idea. And most startling of all—all of us who are in this room are 

now rights-holders, and 100 years ago we weren’t rights-holders in 

the same way. 

So we need to appreciate that we are the heirs to a new tradition. The buildings look big and stony, but they are actually the 

iconic emblem of a new commitment that this Congress has made 

to courts as central to American government. 

The administrative office tells us that between 1960 and 1990’s, 

this Congress created more than 400 new causes of action for people to bring rights and claims and cases to courts. You start at the 

beginning of the 20th century, there are about 30,000 filings; by 

the end of the 20th century, there are more than 300,000 filings. 

So when we reflect on this achievement, we have to understand 

these are important sites of democratic practice, where we can call 

the governments to account, as well as debate with each other the 

rights and obligations we have. 

It was that optimism and expectation that led the long-range 

planning committee of the Judicial Conference in 1995 to say, by 

2010, there will be about 600,000 cases or more in the Federal district courts. So that is the first proposition, as a little reflection. 

The second is that—the second point is, if the project of the 20th 

century was to get us all into court, the project of the 21st is what 

to do now that we are all there. 

68 

And the problem is a real one. For some people, it helps—calls 

of ‘‘civil Gideon,’’ the chief judge of the state of New York has said 

we really need to provide rights—and help people who need to enforce their civil rights to be able to come to court with lawyers, the 

legal services corporation, creating more judgeships and more 

courthouses is a part of it. That is one package of solutions. 

But others have resolved that, instead of that, they need to devolve or outsource our adjudication. So a vast amount of decisionmaking occurs in administrative agencies. The Social Security Administration has more filings in a year than the Federal district 

court, holding bankruptcy aside. The Veterans Administration, the 

employment, immigration, in 2001, there were more than 700,000 

evidentiary hearings in those four Federal agencies, as contrasted 

to a lower number in the Federal district court. 

And we are watching the privatization of adjudication. I brought 

my cell phone contract, like yours. It is likely to say—mine certainly does say—I can’t file a lawsuit in Federal district court. I 

have to go to mandatory arbitration, and I have to not—I am not 

able to enforce my Federal statutory rights in Federal court or 

state court because of these limitations. 

Further, the United States Supreme Court, many times 5-4, has 

imposed new hurdles through pleading requirements, through summary judgments that limit jury trials, through new immunities, 

through limiting implied causes of action. There are lots of factors. 

But the end point is that, instead of those 600,000 cases in the 

U.S. Federal district court, civil and criminal, we have roughly seen 

over the last decade that filings are relatively flat, instead of rising, 

as had been expected. 

So the idea and concern about underutilization may exist, which 

gets me to my third and final point. The answer, if there is a finding of underutilization, is not to stop building courthouses or funding judgeships or confirming judges. The answer is to find a way 

to help those people get to course and enforce their rights. 

I know that the Chairman has introduced the Arbitration Fairness Act in order to create a possibility for consumers and then employees to be able to bring their cases to court and not have heaps 

of contracts be enforced. Additionally, I hope that Congress will return to the Equal Access to Justice Act, which is the provisions 

that enable a victorious plaintiff against the U.S. government to recoup fees. 

The U.S. Supreme Court last spring interpreted that statute as 

providing that the fees go back to the claimant, rather than the 

claimant’s lawyer, and so a man who had won against the Social 

Security Administration and had about $4,000 in attorney’s fees, 

instead of it going to his lawyer, because it went to him and the 

government had a claim against him, his lawyer did get his $4,000 

fee. 

So there are many—looking at the legal services corporations 

and equal access to justice—and as I suggested in my written 

statement, that there is a great disparity across the United States 

in terms of density of use. This Congress in 1990 created the Civil 

Justice Reform Act. It asked each district court to convene individual committees to look at how the civil justice process was going 

on. 

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One could create such committees at the district court level to 

talk to the users, state court, Federal court, lawyers, public and 

private users, to say, how are we using this space and to find ways 

to populate the courts, rather than to close down the process and 

limit access to them. 

So this is a very important topic about how to get people into 

court. And I commend the Chairman for initiating a conversation 

about the relationship between courthouse construction and literal 

access to courts. And I suggest that there are many ways to integrate the system and think about the state, Federal and administrative adjudicatory needs of the country and find ways to get us 

all able to use them. 

Thank you. 

[The prepared statement of Ms. Resnik follows:] 

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PREPARED STATEMENT OF JUDITH RESNIK


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Mr. JOHNSON. Thank you, Professor Resnik. 

I have a few questions, Mr. Goldstein. And if you would, I have 

got four questions that can be answered either yes or no. And if 

you could answer the four questions yes or no, then I will give you 

time to explain, if you desire to do so. Is that fair enough? 

Mr. GOLDSTEIN. Certainly. 

Mr. JOHNSON. All right. Thank you. One, did the GAO conclude 

that no new Federal courthouse construction projects should be 

funded? 

Mr. GOLDSTEIN. No, sir. That was not in our report. 

Mr. JOHNSON. All right. Two, did the GAO conclude that the recommended courtroom-sharing must be applied? 

Mr. GOLDSTEIN. We made no recommendations per se about 

courtroom-sharing, other than they should adopt their own policies. 

Mr. JOHNSON. Three, did the GAO conclude that security concerns in courthouses should be subjugated to space calculations? 

Mr. GOLDSTEIN. We did not directly address security concerns in 

this report, sir. 

Mr. JOHNSON. And, four, did the GAO conclude that the Judicial 

Conference has resisted a congressional directive to share courtrooms? 

Mr. GOLDSTEIN. No, sir, we did not. 

Mr. JOHNSON. And I lied. I have got a fifth question. How much 

did we pay for that report on courtroom-sharing, the modeling? 

Mr. GOLDSTEIN. We paid roughly $45,000. 

Mr. JOHNSON. Okay. Now, any explanation that you would like 

to give with respect to either one of the 5 questions? 

Mr. GOLDSTEIN. No, because I answered with more than a simple 

yes or no. 

Mr. JOHNSON. All right. Okay. Thank you, sir. 

Mr. GOLDSTEIN. Certainly. 

Mr. JOHNSON. Judge Ponsor, my next question—in fact, Judge 

Conrad, you may have something to relate on this question, as 

well—I have extended an invitation to the United States Marshals 

Service, but they were not able to join us as a witness on your 

panel due to scheduling concerns. 

The Marshals Service is planning to submit a written statement 

for the record, however. And maintaining security in our courthouses is extremely important. And I assume that this is a concern 

that is shared by all of the Members on this Committee and the 

public. 

The marshals play the key role in ensuring that security. Can 

you discuss the courthouse protections provided by the Marshals 

Service? And can you also discuss the increased need for those protections in light of recent violence in courthouses, including a 

shooting in Atlanta several years ago, and the increased threat of 

terrorism since 2001? And also, can you discuss how that changes 

the funding requirements for the judiciary, Judge Ponsor? 

Judge PONSOR. Yes. The legendary Judge Arnold once said of the 

courts, there has to be a place where people can go and be safe, 

and we have to be it. There has to be a place where people can go 

and have their rights vindicated, and we have to be it. If we don’t 

have that, we are Somalia. We are northern Mexico. We are Colombia. Our judicial system and the protection of people who seek acVerDate Aug 31 2005 13:17 Mar 01, 2011 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\092910\58478.000 HJUD1 PsN: DOUGA
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cess to our judicial system must be secure. And there is no question 

that that is getting to be more and more difficult. 

In my little town of Springfield, Massachusetts, which has about 

150,000 people, before we built our new courthouse, I came into my 

court one day, and I found bullet holes in the window facing the 

jury. Imagine the unnerving experience of sliding into a jury box 

and seeing it look like something out of Al Capone, bang, bang, 

bang, bang, four bullet holes in the window shot from an adjoining 

garage over the weekend. 

I was using, as with Judge Conrad, elevators that were used by 

the same defendants that I just sentenced. They were usually in 

custody, fortunately. But I would also take the elevator with their 

family members. And there were some pretty tense elevator rides 

with family members and fellow gang members of individuals that 

I had sentenced. 

Costs have gone up. New courthouses have got to be blast-resistant. There has to be a certain amount—at least on the lower 

floors—of bullet-resistant glazing. Setback requirements have increased. Architects have come to learn how to construct bollards 

and other reasonably attractive devices which serve to keep vehicles away from the courthouses. We live in an environment where 

we have to expect the possibility of serious problems. 

In the Los Angeles courthouse, which is one of our highest priorities, if not our highest priority, they are trying Mexican gang cartel cases with sometimes a couple of dozen defendants at a time. 

And they have the courtrooms arranged in such a way that the defendants can be shackled while they are in the courtroom out of the 

view of the jury. 

This is not going to get easier. It is not going to get easier. And 

the construction of courthouses that can handle this is absolutely 

essential. 

So, yes, Mr. Chairman, it is more expensive. It is pressing. But 

it is critically important if we are going to maintain civil society. 

Mr. JOHNSON. Thank you. 

Judge Conrad, anything to add to that? 

Judge CONRAD. Briefly, I think our marshals serve heroically, are 

asked to do a great deal with not sufficient resources. Our marshals in recent cases in Charlotte have dealt with gang cases and 

with people in witness protection programs and trying to transport 

these defendants and witnesses in a way that doesn’t prejudice 

them in front of the jury. 

And given the inadequate security—the inadequately designed 

security measures in our courtroom and the amount of things we 

ask marshals to do in a very dangerous situation, I think they perform heroically. But the funding issue for them is always an issue. 

Mr. JOHNSON. Thank you. 

Professor Resnik, can you discuss increasing access to justice— 

well, you discussed increasing access to justice in both your written 

statement and your testimony. What steps should Congress take to 

increase access to the courts? And are there any particular initiatives that you would like to see? 

Ms. RESNIK. I do have specific suggestions. First, to commend to 

you the legislation that you have initiated, which is that the Federal Arbitration Act, which was created in 1925, spoke to mandaVerDate Aug 31 2005 13:17 Mar 01, 2011 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\092910\58478.000 HJUD1 PsN: DOUGA
97 

tory arbitration in—spoke to changing the judicial view, which was 

very negative arbitration, in commercial activities. 

In 1925, it isn’t clear that the U.S. Supreme Court would have 

interpreted the commerce clause as reaching the employment contracts of an individual and their employer or a modest country contact. 

Up until the mid-1980’s, the U.S. Supreme Court further interpreted the Federal Arbitration Act as not applying to contracts that 

we would call adhesive, that—I don’t have any negotiating capacity, but have to sign off—and further, interpreted some Federal 

statutes as so important that the courts had to be in the public 

realm, and therefore the Federal judges, like those sitting on this 

panel, needed to rule on claims of rights. 

Starting in the mid-1980’s, however, the Supreme Court reversed 

its interpretation, often 5-4, and said instead that the FAA, the 

Federal Arbitration Act, did apply to eventually employee, consumer, and a host of other contracts, that if you wanted to argue 

that the alternative did not—in the terms of art—adequately vindicate your statutory rights, you, the party protesting the contract, 

had to show that the other proceeding was too expensive or too difficult. I know. 

Mr. JOHNSON. If you would, go up and wrap up that question. 

Ms. RESNIK. And so these are statutory interpretations that obviously defenders on the court think are the wrong interpretations. 

Congress has complete ability to insist on the interpretation of 

these statutes, which will re-enact amendments to these statutes 

that make plain that they should not be applied to consumers and 

employees. 

Congress has already done so for franchisers and franchisees in 

some car cases, in an automobile fairness act in 2002. Congress can 

do this again. 

The equal act—the justice act can be revisited to be sure that the 

lawyers, not the prevailing parties, get the fees. And furthermore, 

you could pass a statute like the Civil Justice Reform Act called 

the Equal Access to Courts Act of 2010 that would invite all of us 

into a conversation about how to help get access to courts and put 

on the agenda ‘‘civil Gideon,’’ state courts and state court needs, 

turning to the State Justice Institute and asking for information 

from the chief justices of the state courts, as well as for the—functionally, the judges, who are working in administrative agencies, 

because what we want is public decision-making. 

Mr. JOHNSON. All right. Thank you, Professor. 

And this question will require either yes, no, or just silence. Does 

anybody on the panel ever—does anyone on the panel have knowledge of any case where the judicial branch, the coequal judicial 

branch of the United States, has ordered the legislature to fund 

corrections to courthouses or judicial facilities that are uninhabitable? Has anyone ever heard of such a thing happening before? 

Okay. Everyone is silent, so I suppose not. That would be an interesting law school exam. 

Ms. RESNIK. In the law school hat here, I should add that there 

are state courts where state judges have held that the failure to 

fund judiciaries violates state separations of power obligations. 

98 

There is a pending lawsuit in New York, because there has been 

a failure to raise judicial salaries. 

And in Canada, the Canadian supreme court has held that there 

has to be independent setting of judges’ salaries, so there are at 

least some models for courts saying to legislatures, ‘‘Please fund us 

as a matter of constitutional independence.’’ 

Mr. JOHNSON. Thank you. 

I will now turn it over to the Ranking Member of this Subcommittee, Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you all with us. 

The courtrooms and courthouses portrayed by Judge Conrad and 

Congressman Cooper are inexcusable. Conversely, I am confident 

there are some courthouses and courtrooms that are excessively 

lavish, and I think they would be equally inexcusable. 

Let me then question the two judges. Gentlemen, what can the 

judiciary do to fulfill its constitutional mission in a more cost-efficient manner? Judge Ponsor or Judge Conrad? 

Judge PONSOR. There are two initiatives that I would highlight, 

I think at least to start the conversation, that I could think of. The 

first is the asset management planning process that the judiciary 

has been adopting for the last several years. That was referred to 

by Congressman Cooper. 

It means that we are able to apply objective criteria to courthouse situations and only fund new courthouses or renovations to 

existing courthouses where applying an objective yardstick, we find 

that it is really needed. And that process has been very helpful in 

prioritizing projects and making sure that only the projects that 

are needed get funded. That is one. 

Two, we have a design guide now, which has been refined over 

the recent years and which ensures that we are able to a very 

great extent standardize courtroom sizes, ceiling heights, offices, 

square footage, in a way which keeps costs under control. 

Despite the criticisms—and we aren’t perfect—but despite the 

criticisms, we have improved that area of our effort tremendously. 

We were the first branch of the government to do really careful 

asset management planning. And we have specific criteria for that, 

and we are continuing to apply those criteria. 

The third point that I think I would emphasize is the fact that 

there is some requests that we courtroom share. And we have been 

courtroom-sharing. We have taken that initiative. We have studied 

it. We took the step of—now we have two senior judges sharing one 

courtroom in our new construction. That was a difficult process for 

us to come to. The senior judges are among the most revered and, 

in some cases, beloved members of our cohort. And we did that. 

We are sharing with magistrate judge courtrooms now, two-forone, with an extra criminal courtroom set aside. That has allowed 

us to tighten up on our courtroom construction. We are studying 

sharing bankruptcy judges, and we are thinking of sharing for larger courthouses. 

Mr. COBLE. Do you concur, Judge? 

One more question, if I may, Mr. Chairman. The GAO indicated 

that judiciary may have contributed to some of the problems by not 

maintaining of caseload protection records that help in measuring 

99 

future workloads and the need for new judges and, secondly, the 

failure to adopt more expansive courtroom sharing policies. 

Judge Conrad, do you want to respond to that? And I will be glad 

to hear from Mr. Goldstein, if he wants to answer it in rebuttal. 

Judge CONRAD. Could you repeat the question? I am sorry. 

Mr. COBLE. Yes, the GAO indicated that the judiciary may have 

contributed to the problems by not maintaining caseload protection 

records that assist in measuring future workloads and the need for 

new judges, A, and, B, by failing to adopt more expansive courtroom-sharing policies. 

Judge CONRAD. I think Judge Ponsor’s response to the courtroom-sharing question, response to that, I think the magistrate 

judges, bankruptcy judges, and senior judges, we are engaged in a 

sharing policy. The active Article III judges, for the reasons I described in my testimony, I think that sharing would be counterproductive and contrary to the needs of justice. 

Mr. COBLE. Thank you, sir. Thank you, sir. 

Mr. Goldstein, want to respond? 

Mr. GOLDSTEIN. Thank you, sir. The notion that we asked the 

courts to retain historical records comes from the fact that it is difficult for them to predict with any certainty—obviously, in a number of ways—just how much—how many judges, you know, will be 

in any courtroom in 10 years. Everyone recognizes that between 

the, you know, vacancies and being able to appoint judges, as well 

as when senior judges will actually change. 

The area where we do think they can do a little better is in understanding the connection between caseloads and the need for 

judges, because a number of the case study courthouses we went 

to showed that, despite their prediction, that there would be a significant increase, and therefore they requested additional judges 

and built out space to accommodate that, there had been no change 

in caseloads. 

So by having a longer record, we would hope that they would be 

able to then better predict and better understand, you know, the 

varieties, you know, and the kinds of things that go into making 

those numbers up. 

Mr. COBLE. Thank you all again. 

I yield back, Mr. Chairman. 

Mr. JOHNSON. Thank you, Ranking Member Coble. 

Next questions from Congressman Gonzalez. 

Mr. GONZALEZ. Thank you, Mr. Chairman. 

And I know that I am going to have to be really brief, so I will 

ask the witnesses to see how brief they can be in their responses, 

but I just want to touch on something, Mr. Goldstein. In the GAO 

report—and the problem for the rest of the witnesses—Mr. Peck already knows this, the commissioner knows this—we place great 

stock on the GAO, because we charge them with so much in the 

way of responsibility, and we always say, ‘‘Well, let’s get a GAO report on this thing,’’ so that is why we are where we are today. 

However, Mr. Goldstein, do you have an opinion as to whether 

members of Transportation and Infrastructure should be actually 

advocating for a moratorium on any of the courthouses that are in 

the 5-year plan, pursuant to the letter that has been referenced of 

August the 2nd? 

100 

Mr. GOLDSTEIN. Congressman, that is really a policy issue. GAO 

does not take policy positions such as that. My purpose here today 

is to talk about issues you may have to discuss or need more information with respect to the report we wrote. 

Mr. GONZALEZ. But you have responded that there was no suggestion in there that there should be a moratorium. 

Mr. GOLDSTEIN. We have made no suggestion. We have had no 

discussion of that in our report, that is correct, sir. 

Mr. GONZALEZ. Did you take into consideration that if you did 

call a timeout, what kind of additional costs that and how do you 

make up for that? I am just going to give you a real quick example. 

You know, full disclosure, in fiscal year 2012, the San Antonio 

courthouse should be number one, but they are in a building that 

wasn’t even designed to be a courthouse. 

But I don’t even want to get into the particulars of what is parochial and such, because this is really across the board. I will ask 

Professor Resnik real quick, I think I understood what you were 

trying to get to and such, but what about the criminal caseload? 

Ms. RESNIK. The—— 

Mr. GONZALEZ. I mean, in my area, that is substantial. And you 

are not going to have that taking place anywhere outside of a 

courtroom setting. 

Ms. RESNIK. No, I am actually for trying to get more things into 

court. But the numbers—the 300,000 to 350,000 filings a year include civil and criminal. And I think what you are pointing to is 

exactly the great disparity of density of use—border states being in 

very acute need for space and some other areas of the country with 

less. 

On the courtroom-sharing, one courtroom that has not been 

much mentioned are the court of appeals. I have argued in several 

of them, as I am sure others here have, and those are very scheduled spaces that are often not used, for example, in the afternoons 

in some circuits, sometimes for a couple weeks at a time. And if 

we are looking for more space and capacity in the system, one 

could look to consider how to use all the rooms. 

But I want to be very clear. The hope is you will look at the flattening filings nationwide and say, ‘‘That is a problem that Congress 

needs to fix,’’ in helping people—— 

Mr. GONZALEZ. No, and I—— 

Ms. RESNIK [continuing]. Come into—— 

Mr. GONZALEZ. And that definitely impacts our needs in identifying them. But I am going to ask Judge Ponsor and Judge Conrad, 

I mean, if you have a moratorium while you are trying to address 

the concerns of certain Members of the Committee that does have 

jurisdiction over construction, what could be the potential consequence of that? 

I know what it is for San Antonio, because we have got a land 

swap going with the city of San Antonio, and they are demolishing 

the police department in order to make room for the Federal courthouse, but then that has to make available the building in the 

round. We have—you have been to our courthouse. It was part of 

HemisFair 1968. It was an exhibit building. 

101 

But what is the danger of the moratorium? I mean, what does 

that mean to the courts? What does that mean to the Federal budget? 

Judge PONSOR. I truly hope that this does not happen, because 

it would be devastating. In 15 to 20 cities, where these projects are 

waiting, we have sites that have been purchased, we have designs 

that have been developed, we have an opportunity in this economic 

climate to save millions and millions of dollars, if we can get going 

on our construction. 

The economic consequences are tremendous. The Salt Lake City 

courthouse, as I said, it is shovel-ready. It is designed. They have 

a site. They are ready to go. The money has been appropriated. We 

have rebid the project and saved $25 million, if we can begin the 

project now. 

The San Antonio situation is replicated over and over again in 

the country. And that is just the economic and logistical consequences that we will face if there is a moratorium. 

The impact upon human beings, flesh-and-blood people who need 

access to courts, in many communities, the state courts are overwhelmed. The only real access to justice has to be the Federal 

courthouse. The door has to be open. The facilities have to be available. And there we have a problem. 

Mr. GONZALEZ. Judge, I hate to cut you short. My time is up. 

And I don’t want to make the Chairman miss a vote, that is for 

sure. So I am just at this point—and I apologize, Judge Conrad. 

Hopefully I will never have to appear in your court, but I will yield 

back. Thank you. 

Mr. JOHNSON. Yes, I hope that I will not have to appear in your 

court, also, Judge Conrad, under those conditions that you cited. 

Judge CONRAD. Bring a bucket. Bring a bucket if you do. 

Mr. JOHNSON. Yes, I will, and my hard hat. 

Mr. COBLE. Mr. Chairman, if you will yield, Judge Conrad’s family are good friends of mine, so don’t be too hard on him. 

Mr. JOHNSON. Well, no. He is probably not deserving of such 

harsh treatment as he has been receiving as a Federal judge. But 

I do want to thank all the witnesses for the testimony today. Without objection, you will have 5 legislative days to submit any additional written questions, and I am speaking of the Members, which 

we will forward to the witnesses and ask that you answer as 

promptly as you can and be made a part of the record. 

Without objection, the record will remain open for 5 legislative 

days for submission of any other additional materials. 

I reiterate my concerns about justice not being run over in a misguided attempt to maximize efficiency in our Federal courthouses. 

Again, I thank everyone for their time and patience. This hearing 

of the Subcommittee on Courts and Competition Policy is adjourned. 

[Whereupon, at 5:39 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF JOHN F. CLARK, DIRECTOR, 

UNITED STATES MARSHALS SERVICE, DEPARTMENT OF JUSTICE


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PREPARED STATEMENT OF JUDGE JOHN M. ROLL, CHIEF DISTRICT JUDGE, 

DISTRICT OF ARIZONA


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