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ELIMINATING WASTE AND MANAGING 

SPACE IN FEDERAL COURTHOUSES: 

GAO RECOMMENDATIONS ON 

COURTHOUSE CONSTRUCTION, 

COURTROOM SHARING, AND 

ENFORCING CONGRESSIONALLY 

AUTHORIZED LIMITS ON SIZE AND 

COST 

(111–115) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS, AND 

EMERGENCY MANAGEMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

May 25, 2010 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ARCURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

SOLOMON P. ORTIZ, Texas 

PHIL HARE, Illinois 

JOHN A. BOCCIERI, Ohio 

MARK H. SCHAUER, Michigan 

BETSY MARKEY, Colorado 

MICHAEL E. MCMAHON, New York 

THOMAS S. P. PERRIELLO, Virginia 

DINA TITUS, Nevada 

HARRY TEAGUE, New Mexico 

JOHN GARAMENDI, California 

HANK JOHNSON, Georgia 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

VERNON J. EHLERS, Michigan 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

CONNIE MACK, Florida 

LYNN A WESTMORELAND, Georgia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

BRETT GUTHRIE, Kentucky 

ANH ‘‘JOSEPH’’ CAO, Louisiana 

AARON SCHOCK, Illinois 

PETE OLSON, Texas 

VACANCY 

(II) 

SUBCOMMITTEE ON ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS, AND EMERGENCY

MANAGEMENT

ELEANOR HOLMES NORTON, District of Columbia, Chair 

BETSY MARKEY, Colorado 

MICHAEL H. MICHAUD, Maine 

HEATH SHULER, North Carolina 

RUSS CARNAHAN, Missouri 

TIMOTHY J. WALZ, Minnesota 

MICHAEL A. ARCURI, New York 

CHRISTOPHER P. CARNEY, Pennsylvania, 

Vice Chair 

DONNA F. EDWARDS, Maryland 

THOMAS S. P. PERRIELLO, Virginia 

HANK JOHNSON, Georgia 

JAMES L. OBERSTAR, Minnesota 

(Ex Officio) 

MARIO DIAZ-BALART, Florida 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

MARY FALLIN, Oklahoma 

BRETT GUTHRIE, Kentucky 

ANH ‘‘JOSEPH’’ CAO, Louisiana 

PETE OLSON, Texas 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Goldstein, Mark, Director, Physical Infrastructure, Government Accountability Office ......................................................................................................... 7 

Peck, Hon. Robert, Public Building Service, Commissioner, U.S. General Services Administration .............................................................................................. 7 

Ponsor, Judge Michael A., Chairman, Committee On Space and Facilities, 

Judicial Conference of the United States ........................................................... 7 

Robinson, Judge Julie A., Chair, Committee on Court Administration and 

Case Management, Judicial Conference of the United States ......................... 7 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Norton, Hon. Eleanor Holems, a Representative in Congress from the District 

of Columbia ........................................................................................................... 58 

Oberstar, Hon. James L., a Representative in Congress from the State of 

Minnesota ............................................................................................................. 63 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Goldstein, Mark Director ........................................................................................ 66 

Peck, Hon. Robert .................................................................................................... 116 

Ponsor, Judge Michael A. ........................................................................................ 123 

Robinson, Judge Julie A. ......................................................................................... 133 

SUBMISSIONS FOR THE RECORD 

Goldstein, Mark Director, Physical Infrastructure, Government Accountability 

Office, response to request for information from the Subcommittee ............... 108 

Ponsor, Judge Michael A., Chairman, Committee On Space and Facilities 

and Robinson, Judge Julie A., Chair, Committee on Court Administration 

and Case Management, Judicial Conference of the United States, supplemental information .............................................................................................. 14 

ADDITIONS TO THE RECORD 

Administrative Office of the U.S. Courts, James C. Duff, Director, letter 

to Mark Goldstein, Director, Physical Infrastructure, Government Accountability Office ......................................................................................................... 150 

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(1) 

ELIMINATING WASTE AND MANAGING SPACE 

IN FEDERAL COURTHOUSES: GAO RECOMMENDATIONS ON COURTHOUSE CONSTRUCTION, COURTROOM SHARING, AND 

ENFORCING CONGRESSIONALLY AUTHORIZED LIMITS ON SIZE AND COST 

Tuesday, May 24, 2010 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ECONOMIC DEVELOPMENT, PUBLIC

BUILDINGS AND EMERGENCY MANAGEMENT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:02 a.m., in room 

2167, Rayburn House Office Building, Hon. Eleanor Holmes Norton 

[Chairman of the Subcommittee] presiding. 

Ms. NORTON. Good morning. And welcome to today’s hearing on 

the Government Accounting Office’s draft report entitled Eliminating Waste and Managing Space in Federal Courthouses, GAO 

Recommendations on Courthouse Construction, Courtroom Sharing, and Enforcing Congressionally Authorized Limits on Size and 

Cost. 

We are pleased to have two Federal judges with us this morning, 

the Honorable Michael Ponsor, chair of the Judicial Conference 

Committee on Space and Facilities, and the Honorable Julie Robinson, chair of the Judicial Conferences Court Administration and 

Case Management Committee, as well as the Honorable Robert 

Peck, commissioner of the GSA Public Building Service, and Mark 

Goldstein, GAO director of physical infrastructure. 

Today’s hearing is one of several hearings that meet the oversight requirements under clause 2(n), (o), and(p) of rule 11 of the 

Rules of the House of Representatives, which requires each Subcommittee to have at least one hearing annually dedicated to providing oversight on waste, fraud, and abuse. 

We convene this morning primarily to hear from GAO regarding 

a January 24, 2008, bipartisan request from the Committee on 

Transportation and Infrastructure that the GAO examine courthouse planning and construction, including courthouse construction, management, and cost. 

The draft GAO report contains astonishing and serious findings 

about how the courthouse program has been managed and the 

amount of money that has been wasted. GAO determined that the 

33 courthouses completed by GSA since 2000 include 3.56 million 

2 

square feet of extra space, consisting of space that was constructed 

above the congressionally-approved size, with no notice to this 

Committee or Subcommittee; consistent overestimation of the number of judges that courthouses would be required to accommodate; 

and, failure to implement courtroom sharing, despite the mandate 

of the Committee. 

The total value of the unneeded extra space is $835 million in 

construction costs and $51 million in annual costs in rent and operating expenses, according to GAO. The amount of money that GAO 

reports was wasted in overbuilding alone demands address by Congress, because GAO has calculated that it is equivalent to the cost 

of nine additional mid-sized courthouses. 

As the Nation is emerging from the greatest economic crisis of 

our generation with unemployment at 9.9 percent and a growing 

$12 trillion deficit, it is imperative that waste in Federal spending 

be eliminated. The American taxpayer has no stomach for such 

waste when services are being cut in Federal programs and others 

are being scaled down or eliminated across the entire country. Yet, 

criticism of a Federal construction program is neither new nor misunderstood. 

As far back as 15 years ago, this Committee asked the Judicial 

Conference of the United States to address the issue of cost containment. The hesitance in decision and absence of resolve led to 

the draft GAO report we are considering today. 

The report cites three principal forms of waste in the Federal 

courthouse construction program. The construction of 1.7 million 

square feet—that is 1.7 million square feet—in excess of congressional authorization. Of that number, construction of 887,000 extra 

square feet was caused by overestimating the number of judges the 

courthouse would have in 10 years, and the construction of 946,000 

square feet because of lack of sharing in courthouses across the 

country. 

Remarkably, a report prepared in 1996 by the Administrative Office of the U.S. Courts, at the direction of the Judicial Conference, 

entitled, ‘‘Space Management Initiative in the Federal Courts’’, 

asked the judiciary to begin a process of sharing. A segment of the 

report of the Administrative Office of the U.S. Courts bears hearing. And I am quoting. 

‘‘Courtroom Sharing. The Congress has asked the Judiciary to 

consider sharing courtrooms, and to determine the impact on a 

judge’s ability to try cases if courtroom sharing were implemented. 

The Court Administration and Case Management Committee, 

working in conjunction with other appropriate committees, should 

be tasked by the conference to determine what policy on courtroom 

sharing for active and senior judges should be adopted, and whether the impact of any delays that would result from sharing courthouses will adversely affect case processing.’’ 

This was the same conversation we were having with GSA and 

the AOUSC 4 years ago. However, only in the last 2 years has the 

Judicial Conference agreed to a very modest courtroom sharing policy for senior and magistrate judges. Consequently, today there are 

empty courtrooms across the country because of resistance to the 

congressional directive to share courtrooms whenever possible. 

3 

GAO’s report states that the Judicial Conference also has consistently overprojected the number of judgeships and the number of 

senior judges that would be appointed 10 years from the point of 

courthouse design. For 28 of the 33 courthouses the GAO studied, 

at least 10 years have lapsed since design. Of these 28 courthouses, 

23 had extra courtrooms and auxiliary space associated with empty 

courtrooms, space such as jury deliberation rooms, attorney conference rooms, holding cells, et cetera. 

For at least two of these courthouses, the number of judges required to be housed was overestimated by 10. Because approval of 

new Article 3 judgeships and judge appointments relies on a political process, we certainly can appreciate the difficulty in making 

accurate predictions. However, with overestimations of 887,000 

square feet of wasted courthouse area, the Committee intends to 

require the necessary expertise to account for probable growth with 

sufficient accuracy to assure sound fiscal stewardship of the government’s resources. 

The Judicial Conference appears to have taken leadership of a 

major GSA construction program, rendering the public building 

service of the GSA all but a nominal partner in the management 

of the program. 

With 3.56 million square feet of wasted space, GSA is responsible 

for 1.7 million square feet of the overbuilt space, nearly half of the 

total because the Public Building Service provided poor oversight 

of the design and construction process. 

This Committee, in deliberate and careful review, examined each 

prospectus submitted by GSA and made an affirmative decision to 

authorize each of these courthouses by resolution at a certain 

square footage. Yet GSA exceeded the limits of the Committee resolutions in 27 of the 33 courthouses completed since 2000. In the 

case of the O’Connor Courthouse in Phoenix, Arizona, and the Arnold Courthouse Annex in Little Rock, Arkansas, GSA overbuilt 

the courthouses by over 50 percent, creating several hundred thousand square feet of wasted space. 

For some time now, GSA has considered not only the courts, but 

Federal agencies to be GSA’s coustomers rather than the American 

taxpayer. Time and again, over the past decade, the Agency has allowed the courts and Federal agencies to redesign, reassign, and 

rethink space decisions with apparently no thought of the financial 

considerations. The number of amended resolutions has grown 

steadily, as has the cost of the court program. 

Twice in the last 6 years, this Subcommittee has heard testimony 

regarding the judiciary’s inability to pay for its future and current 

space needs and the problems of the courthouse construction program. Today, the draft report from GAO finds that the Federal 

courthouse construction program has been undisciplined and out of 

the control of the GSA, the Agency charged by statute with administration of the program. Not the courts, it is the GSA that is 

charged by statute of the Congress of the United States with administration of this program. 

In the 2005 hearing, the judiciary as well as the GSA, committed 

to a series of actions each entity would undertake to control the 

court’s runaway rental costs. The Committee did its part by asking 

the GAO to review how the courts budget for rent, how GSA acVerDate Aug 31 2005 12:47 Sep 16, 2010 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 P:\DOCS\56725.0 KAYLA
4 

counts for rents, and what impact the court’s rent relief request of 

nearly $500 million would have on the Federal building fund. 

GAO’s review came in a June 2006 report on courthouse rent increases and mismanagement, and contained findings of multiple instances of unused or underutilized courtrooms, chambers and support spaces, that there is no criteria in the design guide to assign 

space to appeals courts, even after 15 years of the Committee requesting such criteria, and that judges have exclusive access to facilities in multiple buildings. 

In March 2004, the courts essentially imposed a 2-year moratorium on courthouse construction because of the escalating rental 

costs. Also in 2005, the Judiciary Space and Facilities Committee 

committed to reviewing the space standards of the U.S. Court’s Design Guide with ‘‘emphasis on controlling costs.’’ First, the Space 

and Facilities Committee began a revamping of its long-range facilities planning process to include ‘‘examining staff and judgeship 

growth as well as the space standard use for estimating square 

footage needs.’’ 

Although GSA knew that the judiciary had difficulty paying its 

rent bills, GAO reports that GSA overbuilt 9 of the 33 courthouses 

after the 2006 hearing. At least three courthouses were more than 

25 percent over the congressionally authorized limit without any 

notification to this Subcommittee even after we made certain that 

both the AOUSC and GSA knew that we were deeply concerned 

about the issue of space saving and adherence to the Committee’s 

direction on cost containment. 

In effect, GSA to some measure, turned a deaf ear not only to 

this Committee’s concerns, but also to the judiciary’s concerns 

about the inordinate rent costs associated with new courthouses. 

GSA ran up the tab with overbuilding, apparently oblivious of any 

hardship this might create for the judiciary in funding its burgeoning rent obligation to GSA. 

Moreover, several of the courthouse prospectus requests submitted since that hearing still do not include courtroom sharing on 

the scale that this Subcommittee has consistently required. In surprising disregard of the Committee’s mandates, nearly every courthouse has continued to have a one to one ratio of judges to courtrooms. The prospectus requests do not reflect the level of sharing 

that GAO now finds has been more than possible using the judiciary’s own data produced by the Federal Judicial Center. 

It is fair to ask where GSA has been throughout this process, 

why did the GSA not notify the authorizers that these problems 

were continuing even after our hearings when the judiciary continued to submit projects that were inconsistent with our direction. 

The conclusion is unavoidable: That little if any progress has 

been made in controlling costs or managing the Federal courthouse 

construction program after a decade of scrutiny. This Subcommittee will withhold authorizing any new additions to the 

court’s inventory until we are convinced that the Federal courthouse construction program is satisfactorily reformed. There will be 

courthouse sharing where it is appropriate and every courthouse on 

the court’s 5-year courthouse project plan will be reconsidered 

under new sharing guidelines. 

5 

We do not plan to authorize any new courthouses without details 

on real savings and programs to control spending. We will need a 

list from GSA of all court projects that are currently appropriated 

and designed so they can be evaluated to ensure that they do not 

include the type of waste identified by the GAO in its draft report. 

This Subcommittee has a long history of bipartisan and actually 

nonpartisan action, particularly when it comes to the courts. 

Today, we will hear from all of the parties, and in collaboration 

with them, we will begin a process of problem-solving reform of a 

major Federal program. We intend to work with the GSA and the 

courts to ensure good management decisions on behalf of the American taxpayer. Legislation will be necessary, and we look forward 

to working with the minority towards a bipartisan solution to ensure significant savings for taxpayers. 

We appreciate the testimony of each of our witnesses today, and 

we welcome your thoughts and suggestions. 

It is now my pleasure to ask our Ranking Member if he has an 

opening statement. 

Mr. DIAZ-BALART. Thank you very much, Madam Chairwoman. I 

could almost repeat what you have just said. You mentioned, 

among the things that you talked about, the fact that this Committee works in an nonpartisan way. And it is true, very few Committees work the way this one does. And it is because, frankly, the 

leadership of the Committee. It has been that way regardless of 

who is in control, and it remains that way with you as Chairwoman and with Mr. Oberstar as Chair of the Full Committee. 

This is one area where we absolutely speak with one voice. I 

want to thank you for holding this hearing. This is a key hearing, 

and I know one that you have been talking about for a long time, 

and we have just never had all of the right information until now. 

Now we have it. For almost two decades, this Committee has been 

one of the few voices talking about this issue. We have argued for 

smaller courthouses and for courtroom sharing and for stronger 

GSA management of the program. And again, we suspected that 

courthouses were overbuilt, but we didn’t have the actual data. 

Today the Government Accountability Office is going to present 

its review of every courthouse constructed in the last decade. Findings of government waste and mismanagement and disregard for 

the congressional authority and authorization process are, frankly, 

unacceptable and appalling. 

First and foremost, there appears to be a complete and absolute 

breakdown in the management and oversight of the courthouse 

planning and construction. And as a result, GSA built, as the 

Chairwoman said, 3.5 million square feet of courthouses costing 

over $800 million, almost a billion dollars which we just don’t need 

and should never have been built. 

Let’s put that in perspective. That is as if we built three House 

office buildings, including the one that we are in, three of them, 

and left them empty. Think of that concept when you are walking 

through this building and you see the size and scope of this building. Think of three of these buildings empty. That is what we have 

built using taxpayer money, precious taxpayer money. It is totally 

unacceptable. 

6 

According to the GAO, the three main factors the Chairwoman 

already talked about: construction of courthouses that exceeded authorized size; the overinflated projections for future judges; and the 

lack of courtroom sharing. 

I was just reminded a little while ago that this Committee has 

six Subcommittees. I don’t believe we have six meeting rooms. We 

share the meeting rooms. I know a lot of people will argue that 

Congress is necessarily the most efficient institution on the planet. 

However, that illustration alone will tell you how problematic this 

overbuilding of courthouses has been because they do not share. 

Even Congress shares, but courthouses do not. 

Again, the GAO reviewed 33 courthouses since 2000 and found 

28 exceeded their authorized size limit. To add insult to injury, 

GSA officials responsible for the construction of several of the 

courthouses didn’t know they were overbuilt until the GAO mentioned it to them. 

I think I need to repeat. Again: GSA officials responsible for the 

construction of several courthouses did not know they were 

overbuilt—these are the people responsible for them—until GAO 

told them. That is what my understanding is, and I hope to hear 

about that. 

Again, on top of this mismanagement, the courts continued to 

base their space decisions on projections that have been shown to 

be flawed, to be unreliable. 

Another 887,000 square feet of unneeded space was built because 

U.S. court models for projections projecting the numbers of future 

judges were overestimated by 35 percent. We are not talking about 

a small margin of error here, we are talking about huge percentages: 35 percent. For example, in 1995, the Long Island, New York, 

courthouse had 14 judges and the courts estimated 25 judges by 

2005. After building a brand new courthouse, there are now only 

15 judges at the courthouse, one more than was previously there. 

Today the courts continue to base their space decisions on those 

bad projections despite nearly two decades of experience that have 

shown us those are wrong assumptions and failed experiences. 

More space and money could have been saved had the courts instituted a courtroom-sharing policy. I mentioned that a little while 

ago. The Chairwoman has mentioned that, and I want to reiterate 

what she said. 

A sharing model developed by the GAO clearly indicates that 

sharing could have reduced the number of courtrooms by about 40 

percent. 40 percent. Or 950,000 square feet of space. Those are serious increases of space that taxpayers should not have to pay for. 

These estimates are based on the court’s own data of courtroom 

usage, including cancelled events and nonjudicial ceremonial uses. 

We hold the trust for the American people, and it seems that 

trust has been broken. 

Courthouses have been built way too big for way too long and for 

more money than ever needed, and that is the taxpayer’s money. 

They have the right to expect that their money is being used efficiently and effectively. Here is a case where we can demonstrate 

that has not been the case. This Committee has been mentioning 

that for a long, long time. We have been stonewalled, but now we 

have the information that proves it. It is clearly appropriate that 

7 

the judiciary have the appropriate space to carry out its constitutional functions, and we all support that, we must ensure that we 

are good stewards of taxpayer dollars and we are not just throwing 

money away for no good reason. 

I hope today we can hearing from the witnesses to examine those 

issues more closely. I also hope that the Committee will use this 

information that we have gathered today to better inform our decisions on current and future courthouse authorizations. Again, this 

Committee has been mentioning this for a long time. We have the 

data, and I want to thank, once again, the Chairwoman not only 

for the hearing we are having today, but also for Chairwoman’s 

steadfast leadership on this issue. 

This is not new for you, you have been talking about this for a 

long time. You have been right, the Committee has been right, and 

the data is there to prove it and now we need to take it to its next 

logical conclusion. I thank you for the hearing, and I want to thank 

the witnesses for being here today. 

Ms. NORTON. Thank you very much, Mr. Diaz-Balart. 

TESTIMONIES OF MARK GOLDSTEIN, DIRECTOR, PHYSICAL INFRASTRUCTURE, GOVERNMENT ACCOUNTABILITY OFFICE; 

HON. BOB PECK, PUBLIC BUILDING SERVICE, COMMISSIONER, U.S. GENERAL SERVICES ADMINISTRATION; JUDGE 

MICHAEL A. PONSOR, CHAIRMAN, COMMITTEE ON SPACE 

AND FACILITIES, JUDICIAL CONFERENCE OF THE UNITED 

STATES; AND JUDGE JULIE A. ROBINSON, CHAIR, COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT, JUDICIAL CONFERENCE OF THE UNITED STATES 

Ms. NORTON. Let us begin with Mark Goldstein, director, physical infrastructure, Government Accountability Office. 

Mr. GOLDSTEIN. Thank you, Chairwoman Norton, and Members 

of the Subcommittee. Thank for the opportunity to appear before 

the Subcommittee this morning to discuss Federal courthouse construction. The Federal judiciary and the GSA are in the midst of 

a multi-billion-dollar courthouse construction initiative which 

began in the early 1990’s, and has since faced rising construction 

costs. 

As requested by this Subcommittee, for 33 Federal courthouses 

completed since 2000, GAO examined: (1) whether they contained 

extra space and any costs related to it; (2) how their actual size 

compares with the congressionally authorized size; (3) how their 

space based on the judiciary’s 10-year estimates of judges compares 

with the actual number of judges; (4) whether the level of courthouse sharing supported by the judiciary’s data could have changed 

the amount of space needed in these courthouses. 

GAO analyzed courthouse planning and use data, visited courthouses and modeled courtroom sharing scenarios and interview 

judges, GSA officials, and other experts. The findings in this testimony are preliminary because the Federal judiciary and GSA are 

still in the process of commenting on GAO’s draft report and did 

not provide comments on this testimony. 

Our preliminary findings in this report are as follows: First, the 

33 Federal courthouses completed since 2000 include 3.56 million 

square feet of extra space; 28 percent of the total, 12.76 million 

8 

square feet constructed. The excess square footage consists of space 

that was constructed above the congressionally authorized size due 

to overestimating the number of judges the courthouses would 

have, and without planning for courtroom sharing among judges. 

Overall, this space represents about nine average size courthouses. The estimated cost to construct this extra space when adjusted to 2010 dollars is $835 million approximately, and the annual cost to rent, operate and maintain it is approximately $51 million a year. 

Second, GAO found that 27 of the 33 courthouses exceeded their 

congressionally authorized size by approximately 1.7 million square 

feet; 15 exceeded their congressionally authorized size by more 

than 10 percent; and 12 of these 15 also had total project costs that 

exceeded the estimates provided to congressional committees, eight 

by less than 10 percent and four by 10 to 21 percent. 

There is no requirement to notify congressional committees about 

size overages, as is required for cost overages more than 10 percent. A lack of oversight by GSA, including a lack of focus on not 

exceeding the congressionally authorized size contributed to these 

overages. 

Our third finding is that the judiciary overestimated the number 

of judges that would be located in 23 of the 28 courthouses whose 

space planning occurred at least 10 years ago, causing them to be 

larger and costlier than necessary. Overall, the judiciary has 119 

or approximately 26 percent fewer judges than the 461 it estimated 

it would have. This leaves the 23 courthouses with extra courtrooms and chamber suites that together total approximate 887,000 

square feet. 

A variety of factors contributed to the judiciary’s overestimates, 

including inaccurate caseload projections and long-standing difficulties in obtaining new authorizations and filling vacancies. However, the degree to which inaccurate caseloads projections contributed to inaccurate judge estimates cannot be measured because the 

judiciary did not retain the historic caseload projections used in 

planning the courthouses. 

Finally, using the judiciary’s data, GAO designed a model for 

courthouse sharing which shows that there is enough unscheduled 

time for substantial courtroom sharing. Sharing could have reduced 

the number of courtrooms needed in courthouses built since 2000 

by 126 courtrooms, about 40 percent of the total, covering about 

946,000 square feet. Some judges GAO consulted raised potential 

challenges to courtroom sharing, such as uncertainty about courtroom availability. But other judges indicated they overcame these 

challenges, when necessary, and no trials were postponed. 

The judiciary has adopted policies for future sharing for senior 

magistrate judges; but GAO’s analysis shows additional sharing opportunities are available. For example, GAO’s courtroom sharing 

model shows that there is sufficient unscheduled time for three district judges to share two courtrooms and for three senior judges to 

share one courtroom. GAO has developed draft recommendations 

related to GSA’s oversight of construction projects ask the judiciary’s planning and sharing of courtrooms that we will finalize in 

our forthcoming report after fully considering agency comments. 

9 

That concludes my statement. I would be happy to take any questions that the Committee may have. 

Ms. NORTON. Thank you, Mr. Goldstein. 

Our next witness if Robert Peck, Public Building Service commissioner of the GSA. 

Mr. PECK. Madame Chair Norton, Ranking Member Diaz-Balart 

and Members of the Subcommittee, thank you for inviting me 

today to discuss GSA’s Federal courthouse construction program. 

The Federal courts play a critical role in the constitutional 

framework of American democracy. Local, State and Federal courthouses are a traditional landmark dating back to the founding of 

the Nation. As a steward of federally own buildings, GSA is proud 

to build courthouses worthy of that role. Federal courthouses must 

maintain the 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. 

I want to thank you and the Members of this Committee and the 

Congress for the authorization and funding we have been given to 

construct this inventory. GSA has serious concerns with this draft 

GAO report, and takes exception to much of its methodology and 

conclusions. We welcome the opportunity to clarify and correct the 

misinformation presented in the report. 

One, GAO has used a space measure that assumes upper space 

in building atriums and courtrooms is included in the gross square 

footage of an asset when it is typically not. 

Two, GAO compounded this erroneous assumption by mistakenly 

ascribing normal operating and construction costs to these empty 

volumes. 

Three, GAO retroactively applies a methodology of courtroom 

sharing to buildings designed in some cases more than a decade 

ago, and then claims that the buildings thus previously designed 

and built somehow violate this retroactive standard. 

Most egregiously, one reading of the GAO report might assume 

that GSA has willfully neglected congressional direction in the 

courthouse program. On the contrary, GSA has conscientiously 

sought and followed regular congressional authorizations and appropriations, and has been subject to strict congressional oversight 

of the program. We built only courtrooms requested by the judiciary and authorized by the Congress. GSA has been forthright and 

transparent in our documents, testimony, and briefings to Congress. 

GAO also discusses overestimating judgeship projections in this 

report. GSA agrees this issue warrants further review since these 

projections have been off the mark in the past. This is a complicated issue, and we believe that GSA, the judiciary, and the Congress should discuss a realistic approach for the future. 

GSA has concerns over the data in this report, as I noted, and 

we dispute many of the findings. To be a little more precise, when 

calculating the amount of extra space constructed in courthouses, 

GAO counted the square feet in the building, including tenant floor 

cuts and vertical floor penetrations in multi-story atriums and double-height courtrooms that are in reality phantom floors. We have 

included a diagram on page 6 of the written statement that show 

graphically how this works. 

10 

GAO uses phantom square footage to calculate additional costs 

supposedly incurred to complete the building. GAO divided the 

total cost of the facility by the building’s gross square footage, multiplied it by the alleged amount of additional space GSA constructed to determine the cost of the alleged overbuilt space. These 

assertions and calculations are inaccurate and grossly misleading. 

Costs for vertical space are not the same as typical building or office space. The cost of constructing, maintaining and operating this 

type of space is significantly less compared to the rest of the facility, not the glaring cost exaggeration in the GAO report. 

For example, the O’Connor courthouse in Phoenix referenced in 

the GAO report has an atrium that is not air conditioned. So to assume these operating costs are the same as the space inside other 

occupied parts of the building is inaccurate. GAO also suggests that 

cost overruns were the direct result of constructing additional 

space. These increases were actually primarily due to unprecedented increases in construction costs which escalated by 58 percent during GAO’s review period. 

Additionally, during the period covered by the audit, the U.S. 

was attacked by terrorists which resulted in increased costs for enhanced security. 

In fact, only four of the 33 courthouses focused on by GAO were 

over 10 percent of their cost authorizations and appropriations. For 

the 33 as a whole, final costs were 8.8 percent over the original appropriated amounts which confirms that in fact the gross overbuilding that GAO alleges did not occur. 

GAO asserts that 27 out of the 33 Federal courthouses built since 

2000 are larger than authorized by Congress. GSA disagrees with 

GAO’s claims since 50 percent of this square footage is due to this 

atrium and tenant cut space that I have noted. GSA bases our 

measuring standards on private industry standards. If GAO applied that current private industry standard, the atriums in all 33 

products audited would be excluded from the calculation, as I said, 

resulting in over a 50 percent decrease in square footage. Reasons 

for the remaining 50 percent of the alleged 1.7 million square feet 

can be attributed to site limitations, which requires us to alter a 

design from the initial very conceptual design presented in prospectus authorizations and constructing connections for annexes 

and some of the space and connections resulting therefrom, and 

new requirements including new design energy and security standards. 

GAO suggests that GSA should notify congressional authorizing 

and appropriation committees if the size of a courthouse exceeds 

the congressionally authorized gross square footage. We will notify 

the appropriate congressional committees when the square footage 

increase exceeds 10 percent. We always ensure our projects stay 

within the statutory 10 percent of the appropriated and authorized 

amounts of dollars; or we notify Congress accordingly and apply for 

either escalation or reprogramming authority. We have multiple 

levels of management and system controls to ensure costs do not 

exceed this threshold. 

GSA often has pressing and logical reasons to exceed the original 

gross square footage. For example, during design, architects can develop more energy-efficient methods, including creating atriums 

11 

and light wells to bring natural light into interior, windowless 

space within the building that could increase the building’s square 

footage, but in the long run, reduce energy costs. GSA will ensure 

that Congress is notified of these increases in the future, as I said, 

along with the reasons for the increases. 

In estimating the cost for this additional space, GAO applies current GSA space measurement policy retroactively in its analysis. 

Although GSA adopted the American National Standards Institute 

and Building Owners and Managers Association measurements 

standards in 1997, GSA did not establish formal national guidance 

to include atrium space in the gross area calculation until fiscal 

year 2005. The 33 courthouse projects under review by GAO were 

authorized prior to this policy. 

So in other words, some of the confusion about measurement is 

as a result of our having brought in one measurement standard 

when we did the prospectuses, and another one later when we actually measured the space and then did include the atrium, the 

empty atrium and courtroom volumetric space in our calculations. 

GAO also asserts that GSA needs additional oversight and controls over the management of our program. We already have policies that require central office of GSA and the regions during the 

design process to approve facility measurements and ensure they 

are in line with the appropriation and authorization. Additionally, 

we have measurement experts who provide an independent evaluation of the design. Compliance with the prospectus building size is 

necessary to proceed with a project, and GSA will continue to educate our project teams on these policies and ensure our measurement experts are involved throughout the project phases. 

We work closely with the judiciary to develop their courthouse 

requirements. The judiciary has developed and implemented policies that require courtrooms to be shared among certain classes of 

judges. We commend the courts for developing these new courtroom 

sharing models which were developed in recent years. 

GAO audited courthouses that were designed, and in some cases, 

built before the judiciary and GSA implemented these newer sharing models. It is important to note that this sharing requires one 

courtroom for every two senior judges, and one courtroom for every 

two magistrate judges. The judiciary and GSA also implemented 

additional sharing policies for American Recovery and Reinvestment Act projects of no more than one courtroom for every two senior district judges who are up to 10 years in advance of their senior 

eligibility date. 

It is important to note that GAO’s findings were based on 

projects designed before these sharing models were implemented. 

We in the judiciary are committed to these courtroom sharing policy for new courthouse projects with future plan designs. 

This concludes my testimony. I appreciate the opportunity to discuss the draft report and clarify the assumptions and statements 

made in it. Thank you for inviting me to appear. I am happy to answer your questions. 

Ms. NORTON. Thank you, Mr. Peck. 

Ms. NORTON. We will hear next from Judge Michael Ponsor, 

chairman of the committee on space and facilities of the Judicial 

Conference of the United States. 

12 

Judge PONSOR. Thank you, and good morning, Madam Chair and 

Members of the Subcommittee. I am Michael A. Ponsor. I am a 

United States District Court Judge for the district of Massachusetts western division. Since last October, I have served as chair 

of the Judicial Conference Committee on Space and Facilities, and 

I am very honored to be appearing before you for the first time 

today in that capacity. 

Before my brief remarks, I do want to take the opportunity to 

thank the Subcommittee for its support of the judiciary’s courthouse construction program. I have special reason to express my 

gratitude since my community has benefited from this Subcommittee’s assistance and oversight in the form of Springfield’s new 

much-needed courthouse which opened in October 2008 and which 

I work in every day. 

I will be commenting on the GAO report, and I have two points 

to make in my brief time: the first to praise; and the second to 

demur. 

First of all, the six recommendations offered at pages 47 and 48 

of the GAO report are, in my opinion, sensible and helpful. I welcome them. I believe they will mesh comfortably with the efforts 

that the judiciary is making in this area, and I look forward to 

working with this Subcommittee toward their implementation. 

Some aspects of the recommendation regarding courtroom sharing 

need more discussion and refinement, and my committee looks forward to playing a role in these discussions. My colleague, Judge 

Julie Robinson of Kansas, will be addressing this topic in a few 

minutes. 

Second, and less happily, I must say that the suggestion in the draft report that the judiciary overspent to the tune of $835 million 

in its courthouse construction program during the period 2000 to 

2010 is both unfounded and quite unfair and distorts what actually 

happened. None of the three reasons offered to support the draft 

report’s claim of this kind of overspending can withstand fair scrutiny. 

The first explanation by GAO for the alleged excessive cost—that 

we spent beyond Congressional authorization—is particularly disturbing. As Commissioner Peck has pointed out, supposed discrepancies between square footage contained in courthouse 

prospectuses and the ultimate size of the courthouse can largely be 

explained by differences between the GSA and the GAO in how 

gross square footage has been calculated and certainly not by any 

intent to evade or thwart the will of Congress. The report’s chart 

on page 15 identifies the Springfield courthouse as having exceeded 

its authorization by 10 to 20 percent. I have not had access to the 

GAO’s work papers, but based on the documents I have seen, this 

is simply untrue. 

Between the design and construction phases in Springfield, we 

actually deleted one of the five courtrooms originally approved for 

the project. The construction prospectus predicted a total 157,750 

gross square footage for our courthouse. As the building went up, 

I visited the site regularly and participated in monthly construction 

meetings for more than 3 years with representatives of the GSA, 

the architect, the contractor and a senior staff member from Congressman Richard Neal’s office. The building’s total square footage 

13 

when it opened in October 2008 was 162,000 square feet, about 2 

percent, not 10 or 20, percent over prediction. If numbers for the 

other courthouses are as far off as they appear to be for Springfield, the GAO overall estimate of 1.7 million in excess square footage is not worthy of credit. 

[Additional information follows:] 

14 


Insert offset folio 6 here 56725.006
15 

The GAO’s second explanation—that we planned for too many 

judges—while true to some extent, is unfairly exaggerated. We all 

have 20/20 hindsight. Between 1970 and 2000, the Federal court’s 

civil and criminal caseload skyrocketed. Congress authorized more 

than 400 new district court and circuit court judges over those 30 

years, plus scores of new bankruptcy and magistrate judge positions. It would have been irresponsible not to plan for comparable 

growth in 2000 to 2010. The 119 judges that they say were excessively planned for, fall easily within the average over the previous 

30 years for congressional authorizations. That the caseloads flattened out in some areas of the country between 2000 and 2010, and 

almost no new judgeships were approved by Congress during that 

time, does not undercut the reasonableness of the planning decision 

in the year 2000. 

Predicting the number of judges necessary in a planning horizon 

of 10 years or more is hard. We have welcomed the input of the 

GAO in tackling this difficult problem, and we welcome it today. 

Indeed, of the six recommendations about planning offered by the 

GAO back in 1993, the courts by 2000 had fully adopted five and 

partially adopted the sixth, which was largely superseded. 

As with the current recommendations, these GAO recommendations served to complement the efforts we are already taking in the 

judiciary. A 2-year moratorium on courthouse construction starting 

in 2004, which has been noted by the chair, gave the courts a 

chance to take a hard look at our planning methodology and soon 

afterwards a new planning method, asset-management planning 

(AMP), emerged. AMP gives us the most accurate yardstick to date 

to identify courts and districts that truly need new courthouses and 

major renovations. 

The draft GAO report overlooks the fact that while it is unfortunate to overestimate necessary court capacity, it can be catastrophic to underestimate it. We simply can’t shoot low. New 

judges or senior judges will have no place to work or will have to 

be farmed out into expensive leased space. Moreover, while our 

planning horizon is 10 years, we all know courthouses will be with 

us far longer. Where a courthouse is not full within the 10-year 

planning horizon, it will inevitably be full within a relatively short 

period afterwards. 

The third explanation by GAO for the court’s alleged overbuilding is the failure to apply courtroom-sharing policies, and it 

is similarly unfair. As I have noted, my colleague, Judge Julie Robinson from Kansas, will address this topic in detail. I will only say 

that it does not make sense to criticize the courts for failing in the 

year 2000 to follow courtroom sharing policies that were only recently adopted by the judiciary after careful study and consideration. 

The conclusion of the GAO report begins with a sentence that I 

heartily agree with, and I believe all of us in this room concur in: 

‘‘It is important for the Federal judiciary to have adequate, appropriate, modern facilities to carry out judicial functions’’. As the 

committee chair tasked with ensuring that the court’s physical facilities are adequate to perform our critical role, I find this sentiment somewhat understated. The Judicial Conference has a very 

serious obligation to ensure that the citizens of our country have 

16 

access to adequate, safe, and well-functioning Federal court facilities. 

I look forward to working with this Subcommittee on this important but difficult task. I also look forward to a continued discussion 

this morning, and am happy to entertain questions. 

Ms. NORTON. Thank you, Judge Ponsor. 

Ms. NORTON. Finally, we will hear from Judge Julie A. Robinson, 

chair of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. We also welcome her mother, who has accompanied her here as well. 

Judge ROBINSON. Thank you, Madam Chair, and Members of the 

Committee. My name is Julie Robinson, and I am honored to be 

here this morning and thank you for inviting me. I am accompanied by the lady who put me through law school, Charlene Robinson. I am glad she is here with me. 

I am a United States district judge in the district of Kansas, and 

since 2005, I have been a Member of the Committee on Court Administration and Case Management (CACM) for the Judicial Conference of the United States. 

Since October, like my colleague, Judge Ponsor, who is the new 

chair of his committee, I became chair of the CACM committee in 

October. I have been asked to testify today regarding our committee’s work in developing the Judicial Conference’s new courtroom 

sharing policies and share the views of the judiciary on the recent 

report from the Government Accountability Office on the planning 

and construction of court facilities. 

The primary responsibility of my committee is to ensure the just, 

speedy, and inexpensive determination of cases; inexpensive for the 

litigants, taxpayers, citizens, and others who come before our court 

to take advantage of our core mission. The availability of a courtroom is one of the judiciary’s most important tools in meeting this 

goal. As a result, the Judicial Conference asked the Court Administration and Case Management Committee rather than its Space 

and Facilities Committee to take the lead in developing an appropriate courtroom sharing policy for the Federal courts. Thus, my 

testimony pertains exclusively to the sharing policy and not to 

other issues involving the planning and construction of court facilities. 

My written testimony contains an overview of how we developed 

the new courtroom allocation policies and the judiciary’s response 

to the GAO’s report. But in my statement to you today, I wish to 

emphasize some key points about our new courtroom sharing policies and the problems with the GAO’s proposed report. 

As you know, our committee asked the Federal Judicial Center, 

FJC, to conduct the courtroom use study requested by your House 

Subcommittee. The FJC conducted this study independently by 

surveying 26 randomly selected districts representing various-sized 

courts. 

The committee based significant changes to the judiciary’s courtroom allocation policies on the findings of the FJC study, but it 

also noted the limitations in applying the findings too broadly or 

too literally. The FJC’s findings provide national averages, distorting the picture of the courtroom use in any given court. If taken 

as an average, the existence of underutilized courtrooms in some 

17 

locations would negate the need for courtrooms in other busier locations; or provide an incorrect picture of the real number of courtroom hours in very busy courts or for courts experiencing peak 

workloads. Thus, the study’s findings must be applied carefully. 

The committee also noted that many courthouses were built in 

a different era when demographics supported the facilities. Even if 

no longer fully utilized, those facilities are an important link to the 

judiciary and the national government in those areas. 

The committee cautioned that the courtroom usage data was collected over two 3-month periods. Thus, it may not be a complete 

picture of all courtroom use. For all these reasons, care must be 

used in applying these national findings to local projects. 

We were careful in crafting the new policies to ensure that courtroom sharing would not unduly impede current cost savings or efficient case management. For instance, we accounted for the impact 

that delayed justice has on litigants, attorneys, crime victims, and 

others. We noted the cost savings of having an available courtroom 

and its effect in encouraging the parties to either be ready for trial 

or to settle their case. And we tried to ensure some certainty in the 

prosecution of criminal cases, costs such as travel and housing for 

defendants in criminal cases, and we have worked with Congress 

to reduce delay and cost in litigation. 

The Civil Justice Reform Act of 1990, for instance, required all 

district courts to implement plans to reduce civil litigation delays. 

Those changes increased efficiency for the courts, but imposed costs 

that have been borne by the judiciary, including the need for immediate and certain access to a courtroom. 

With these considerations in mind, our committee devoted a 

great deal of time and effort in developing an appropriate balance 

between meaningful courtroom sharing and effective case management. This effort included the FJC’s comprehensive study, our negotiations with other Judicial Conference committees, and consultations with the House Subcommittee by my predecessor and the 

predecessor of Judge Ponsor on his committee. As a result, the Judicial Conference adopted a policy to provide one courtroom for 

every two seniors judges and one courtroom for every two magistrate judges. We currently have underway a courtroom usage 

study of bankruptcy courts, and my committee will consider a sharing policy for courthouses with more than 10 active district judges 

after the bankruptcy study is complete. We expect the bankruptcy 

study to be complete this summer, and we will be working on its 

findings this fall. 

The draft GAO report proposes a number of sharing policies that 

are very different from those endorsed by the Judicial Conference, 

and include sharing policies that are still being studied or considered by my committee. These proposals are based on two sources 

of information. The first is a computer model of the FJC study data 

that was developed by a contractor for the GAO with no apparent 

claim to any particular expertise in the judicial system. Any model 

must be based on certain assumptions formulated by those with 

great expertise and understanding. The GAO does not describe the 

assumptions used to develop the model. Moreover, the GAO’s recommendations, which may well have been part of the assumptions, 

are highly questionable. 

18 

For example, GAO asserts that the Nation’s border courts and 

those with higher pending caseloads do make greater than average 

use of courtrooms, but other courthouses in those same districts offset that higher use, they assume. Yet it is entirely unrealistic to 

say that all courtrooms in a district are fungible, no matter where 

they are located. Proceedings cannot be easily transferred from one 

division to another, and it is not good stewardship of taxpayer 

money to transfer cases long distances and pay travel costs for U.S. 

attorneys, assistant public defenders, marshals, prisoners, court 

staff, and witnesses simply to find an available courtroom. 

The GAO also assumes that every courtroom can be used for 10 

hours each day. This is totally unrealistic and virtually impossible. 

Aside from the fact that it inflates the workday of a Federal employee by 25 percent, it assumes that jurors and litigants and witnesses and family members can be present for 10 hours at a time. 

Those people would have trouble arranging their schedules to 

spend the extra hours in the courtroom. This assumption alone 

grossly distorts the GAO’s resulting courtroom sharing ratios. 

I would also note that the GAO incorrectly assumes that criminal 

hearings can be accomplished by videoconferencing. Aside from the 

other participants that participate in criminal hearings, this assumption dismisses the rights of a defendant to have a criminal 

case hearing held in open court. I question the wisdom of basing 

courtroom planning assumptions that are premised on a waiver of 

a constitutional right and contrary to the requirements for the 

presence of the defendant set forth in Federal rules and case law. 

The second source of information used by the GAO to support its 

proposals is a set of comments elicited from a 1-day confidential 

panel of individuals, a panel whose selection and agenda were 

greatly influenced by the GAO itself, but who found that courtroom 

sharing presented a number of problems that would adversely affect the administration of justice. Nonetheless, the GAO report discounts these judges’ skepticism over long term courtroom sharing, 

the disservice of rescheduling an event due to lack of space, and 

the importance of having a courtroom available to encourage resolution of cases. 

Let me share with you briefly from personal experience why the 

quick and rudimentary modeling program employed by the GAO 

would have disastrous results for the judiciary. If I am in trial, my 

courtroom is not being used 2.7 hours a day. It is being used at 

least 8 hours a day. In fact, I am in a heavy season of trials right 

now. For the last 7 months, I have been in trials almost back to 

back until last month—not unique, not unusual, all judges go 

through heavy seasons, as well as light seasons. There is no such 

thing as an average workday or an average workload or an average 

work week for any of us. 

The judges in my court use courtrooms heavily because when we 

are in trial, we schedule other criminal hearings. We try to sandwich those in at the beginning of the day or the end of the day. 

Or we are in trial for perhaps only 4 days a week so that we can 

set aside a full day to handle other matters. Even with this scheduling, we have to overlap the scheduling of criminal trials and civil 

trials. If I didn’t overlap or stack set, as we call civil trials, right 

now I would be giving litigants trial dates for their civil cases in 

19 

2017 or 2018, instead of 2011 or 2012, if I were to specially set 

every civil trial that needs to go to trial in my caseload. 

We also have latent use of courtrooms, meaning courtrooms that 

aren’t in use because many scheduled trials settle once they are 

given a firm date for trial. But this is unavoidable. For example, 

I am starting a civil trial early next month. I originally had 10 civil 

trials scheduled to start during that same time frame. Nine of 

them have settled; I am scheduled to go on the tenth. If that case 

were to settle today, I can’t fill that estimated week long period of 

time with another trial. It is not enough notice to the parties and 

their witnesses and their attorneys who likely are scheduled to be 

in another courtroom during that time period. 

In a courtroom sharing scenario, particularly for small and medium-sized courthouses, we simply cannot insert another trial at 

the last minute. And it is not only the tax dollars at stake, we see 

litigants who are almost bankrupted by the costs of litigation and 

discovery. Many of our cases that go to trial involve small businesses who cannot bear the heavy costs of litigation and the attendant costs of delay and rescheduling. And also individuals pursuing their civil rights and their rights under title 7 or other important rights. 

An uninformed or hasty courtroom sharing policy will cause 

delay, it will increase costs, and it will impair our ability to dispense justice. 

The key point I do want to make on behalf of the committee and 

the Judicial Conference is that we have taken our responsibility to 

examine courtroom utilization very seriously. We have made significant changes in the courtroom sharing ratios that we have 

adopted, and in our ongoing work with bankruptcy courts and beyond to the larger courthouses involving district judges. The judiciary has made great strides in reducing construction and rent costs 

by sharing. The policies reflect what the model simply cannot—the 

real world experiences of litigants, parties, and judges who sit in 

these courtrooms regularly. They also take into account the legitimate concerns of your Subcommittee, that the taxpayer money be 

wisely spent. Fundamentally, we believe that the policy changes we 

are adopting strike the correct balance between controlling costs 

and delivering justice. 

I thank you, and I am open for any questions. 

Ms. NORTON. Thank you, Judge Robinson. 

Well, Mr. Goldstein, since it has been three against one, perhaps 

we ought to give you the opportunity to respond to some of the testimony before we go forward with our own questions. But before I 

do that, I was informed only after testimony began that Mr. Johnson has some opening comments. Do you want to do those now. 

Mr. JOHNSON OF GEORGIA. Thank you, Madam Chair. 

Just briefly, I would like to say as a practicing lawyer for 27 

years, running between courthouses, both State and Federal, trying 

mostly criminal cases but some civil, some civil litigation as well, 

I do first of all appreciate the Constitution for having set up the 

three legs of the stool, if you will, of government. It is a threelegged stool, coequal branches, coequal legs. If one of those legs 

should be chopped off in any fashion whatsoever, then the stool 

starts to lean. And if you cut it off altogether then, what you have 

20 

is a leg that is not able to function and you don’t have a functioning stool at that point. 

So I think it is important that we remember that the coequal 

branch, the judiciary, has to have resources to function efficiently 

and effectively. And if judges are underpaid, and I know that we 

are not talking about that today, but if they are underpaid, overworked and are homeless, with not having a courtroom or an office 

to work from where, you know, where you are supposed to be at 

all times, it makes for a judiciary that is not functional. And thus, 

it lays the groundwork for the destroying of our great country 

which is dependent on this coequal branch of government system. 

Mr. JOHNSON OF GEORGIA. Now, I realize Congress has responsibility for funding the operations, and Congress needs to be concerned about how the taxpayers’ money is being spent and making 

sure that it is wisely spent, but we should spare no resource to support that third leg of the stool and to make sure that it does what 

it is supposed to do. 

And so I view—I have a strong suspicion that any courtroomsharing advice coming from outside of the court itself is—and produced, I would assume, by nonpracticing lawyers without an appreciation for juries, for pretrial issues, for motions, for the expediency 

that criminal laws require in the criminal law process, and some 

understanding of the civil justice system and how judges play an 

intricate role in terms of how those cases are decided either 

through pretrial motion or through things like trial settings, setting dates which encourage people to engage in either alternative 

dispute resolution or just plain settlement— there is so many niceties that go into this, and I am not sure lay people can appreciate. 

So thank you, Madam Chair, for allowing me to make this statement. I will ask some questions, of course, to gain more knowledge 

about these issues. Thank you. 

Ms. NORTON. I thank the gentleman. And I remind the gentleman that this hearing is not about cases and controversies, and 

that the Committee has always been respectful of the independence 

of the judiciary. And we want to make it clear again, the judiciary 

is not independent when it comes to building space. That is the 

province of this Committee and the Congress, which authorizes the 

money and is going to see to it that the money is spent. This hearing is about $835 million in taxpayers’ money that was spent beyond the authorization of this Committee. This is a Committee that 

abides by the law, and the courts are going to abide by the law 

when it comes to space and the authorization of this Committee. 

Now, I had asked you, Mr. Goldstein, since it was three on one 

on the GAO report, whether we should allow you to respond to 

some of the challenges to the GAO draft report. And it is a draft 

report. And Mr. Peck and all others are going to have the opportunity to respond in writing, but perhaps you would like to respond 

to their criticism of the report. 

Mr. GOLDSTEIN. Thank you, Madam Chair. Just a few comments 

at this point. 

I very much appreciate the panelists’ comments because, as we 

have said, it is a draft report. And we use a draft report to be able 

to engage and obtain comments and try to come to greater agreement, which we will do once this report is finalized. 

21 

Just a few real quick comments. I think I would hope that Judge 

Robinson particularly might read the report again, because I feel 

that a number of the issues that she raised today, she made assumptions that she took out of the report that aren’t quite accurate, as well as I think there are some things that she 

mischaracterized and did not fully explain. So I hope that she will 

reread the report before the judiciary’s comments are provided to 

us in full. 

With respect to Commissioner Peck, GAO and GSA have long 

had a very strong relationship and have worked together very well 

over the years. We can have honest differences, and it appears in 

this case we do. But I would make a few comments regarding Mr. 

Peck’s charges where he feels that we did not—where our calculators were wrong. So let me make a few comments. 

First of all, GAO relied on GSA to provide us all the information 

in the report. All the numbers we used are GSA numbers. GAO did 

not independently measure anything; we did not make any independent policy decisions. We used the policy guidance and standards that GSA has had in place. 

For the 33 courthouses in the scope of our engagement, GSA provided us the total gross square footage via its E–Smart measurement database. This total gross square footage, in line with GSA’s 

policy, includes the upper level of atriums and tenant floor cuts as 

part of gross square footage. So I don’t know why Mr. Peck is saying that is not the case. 

For our seven case study courthouses, GSA provided us with the 

blueprints with the space already measured and classified according to GSA policy. We verified that these measurements were 

equivalent to the measurements in E–Smart, but made no independent measurements or space classifications on our own. Therefore, the extent to which the upper level of the atrium floors and 

tenant floor cuts are counted as useable space are determined by 

how GSA classified them. Upper levels of the atrium floors are 

counted as part of the gross square footage, but not as usable 

space. Tenant floor cuts for courtrooms are counted as usable space 

for the most part and included in rental calculations to the judiciary, unless the tenant floor goes up to the penthouse, in which it 

is not included. 

GSA’s current policies on how to classify and count this space 

have been in existence since at least 2000. Mr. Peck’s description 

of 2005 is not correct. During the course of our engagement, we received the GSA policy provided to regional offices in 2000 that describes the equivalent policies regarding the measurement of atrium and tenant floor cut space as GSA’s current policy. Atrium and 

tenant floor cuts are not the only reason that these courthouses are 

larger than authorized. For example, the Ferguson Courthouse in 

Miami has more than 50,000 square feet of tenant space, and 

planned each of its 14 district courtrooms are about 17 percent 

larger than design guide standards. 

Of the seven courthouses we examined in case studies, three of 

the seven had atriums large enough to be major contributors to the 

size overages. And we certainly don’t dispute that large atriums 

push gross square footage. That is obvious. But the other four had 

no atriums or had atriums too small to be major contributors to 

22 

size overages. On these four, the size overages were largely caused 

by other issues such as extra tenant spaces or extra mechanical or 

common spaces. These four courthouses were all larger than authorized by percentages ranging by 5 percent in Tucson to 26 percent in St. Louis. Furthermore, of these four, only St. Louis had 

tenant floor cuts. So that issue is only a small part as well. 

So those are just some of the things that obviously we will talk 

about more in our final formal comments once we receive GSA’s 

comments. Thank you, ma’am. 

Ms. NORTON. Thank you, Mr. Goldstein. 

Mr. Peck, you can see the Committee is concerned that the authorizing committee was not informed. You talk about informing 

the appropriate committees. Do you understand that to mean the 

authorizers as well as the appropriators? 

Mr. PECK. Yes, ma’am. Absolutely. And let me just make a point 

about the difference of measurements. 

This is a complicated issue in the private sector as well as in the 

public sector, because it is always hard to explain to someone how 

a given floor plate, a floor of an office building, much simpler than 

a courthouse, can have different measurements. But whether or not 

you count the cuts in the floor for elevator shafts or even for electrical conduits and water pipes, whether those count as gross or 

net square footage to be charged to a tenant are issues of significant debate, in the private sector as well as in the public sector. 

So what we have here is a situation that works like this: When 

we come to you for a prospectus authorization, and, as you know, 

we have detailed discussions with your staff and with the Committee about almost every one of those, we come to you at the beginning of a design process for an authorization. 

At the beginning of that design process, we take the generic requirements of a court, which is done by multiplying the amount of 

square footage that you need for the number of courtrooms, the associated circulation space; ancillary spaces like attorney conference 

rooms, jury rooms, jury assembly rooms; plus space of other agencies that typically go with courthouses, like the marshals, sometimes parole and probation, and we give you a generic square footage and an estimate of the dollar amount that will be required to 

build the courthouse. 

During the course of detailed design and construction, however, 

we make decisions about how we will align the courtrooms within 

the building, whether there will be an atrium, for what purposes 

they are. And so at the end of the process, we have built a building, 

and we have focused very much on our overall dollar authorizations 

and appropriations. 

Square footages can vary. And as I can tell you, in the Miami 

courthouse, a huge amount—I am sorry, the Phoenix courthouse, a 

huge amount of the extra footage is accounted for by a very large 

covered atrium, which we and the designer might have made the 

decision to keep as an open courtyard, but we enclosed it, and that 

adds to the gross square footage of the building. 

The problem I have with the GAO calculations is that GAO then 

takes that empty square footage, multiplies it by the dollars per 

square foot that you normally apply to building enclosed courtroom, 

23 

corridor, jury room space, and says all of that money is wasted. So 

this $835 million estimate is just flat out wrong. And it is—— 

Ms. NORTON. Mr. Peck, I think that is a fair point. But we are 

still left with 50 percent overbuilding. Let us give you your 

atriums. And I don’t want to see any more atriums. Taxpayers are 

paying for space. Programs are being cut across the United States, 

and nobody knows when this economy will come back. The President has put a freeze across the board. Do you think we are not 

going to freeze here as well? 

Even if I give you those points, let us say 50 percent of this space 

is attributed to atriums and tenant floor space, that leaves 800,000 

square feet overbuilt for other reasons. 

Now, I mean, all we want—we are not playing a game of gotcha 

here. We are trying to find a way to make sure this doesn’t happen 

again. And with that much overbuilt space, wasn’t there a legitimate reason to come back to the Committee for additional congressional authorization? You act as though once you give it to us, 

these things happen. Do you really expect us to sit here and take 

that? 

Mr. PECK. Because we have mostly in hearings here and in the 

authorizing committees on both sides of the Hill and in the Appropriations Committee focused very much on the cost of our buildings, as I know you all want us to. We haven’t focused as much 

on whether the square footage during the course of detailed design, 

both because of measurement anomalies and because of changes in 

the scope or design standards, add square footage so long as it 

doesn’t add to the overall cost of the project. 

Ms. NORTON. Square footage equals costs. Square footage and 

costs cannot be disaggregated that way. 

Mr. PECK. No, they can, because there are gross square footages. 

For example, the empty square footage of the top 30 feet of space 

in this room doesn’t cost anything to build. 

Ms. NORTON. I granted you that. And we still find 50 percent 

overbuilding. And you say that the standard for reporting square 

footage overages are to be 10 percent. Let us just look at that for 

a moment. 

While the costs may not completely be within your control, Mr. 

Peck, certainly the design should be substantially, if not completely, in your control. Wouldn’t GSA task its architects to design 

to the authorized square footage of this Committee, period? 

Mr. PECK. We certainly could, but that would be a mistake. 

Ms. NORTON. And if so, why would we need more than 5 percent 

leeway? 

Mr. PECK. I know, but here is what happens. May I give you a 

current example of how this can come about, how the square footage doesn’t necessarily increase the dollar amount? 

We are—on one courthouse project we are undertaking now 

under the Recovery Act, I believe it is Recovery Act funding, we are 

going to add a security pavilion to an historic courthouse. 

Ms. NORTON. What is that? What is a security—— 

Mr. PECK. A security pavilion means that we are going to build 

out from the front entrance an enclosed space for the marshals and 

the court security officers to process visitors so that they don’t actually get into the more seriously intense part of the building. 

24 

Ms. NORTON. Sort of like the visitor center here? 

Mr. PECK. Yes, ma’am, Although it is much smaller. 

Ms. NORTON. Yeah. 

Mr. PECK. No comment. It is, however—in that case, we are 

going to be able to build that space within the budget that we already provided for the renovation, because we found ways to save 

money on the rest of it. We are adding square footage. 

I will grant you, and I will tell you the judges have said, I have 

said, we should come back to you, We have not done it before. I 

would like to say it hasn’t occurred to us because we’ve been so focused on costs. We will get back to you when we are getting square 

footage increases as design occurs. But one thing I will note to you 

that atriums in many cases, atriums sometimes called light wells, 

are a feature of many historic buildings and many current buildings in the interest of saving energy. So rather than have a strict 

standard when we are just coming to you for the first authorization 

and saying, let us never build a square foot more than we first anticipate, I much prefer the approach of coming back to you and saying, here is why we believe the square footage is going to increase, 

and particularly is that square footage going to increase the scope 

of the project beyond what the Committee intended, and is it going 

to increase cost. That is something we certainly want to come back 

and discuss with the Committee. 

Ms. NORTON. Well, of course. As you know, Mr. Peck, this Committee has the greatest respect for the flexibility that is necessary 

in any and all building. What we don’t respect is our authorizations 

being ignored. Yes, we are indeed—as long as we can have a discussion about increases in square footage given what the GSA has 

found, we will be fine. And there may be perfect reasons to increase. We just need to know it, because ultimately we are accountable, too. 

We know that—we don’t believe that you are building atriums in 

large open spaces any longer. Are you? 

Mr. PECK. Not as large as some we have seen in the past. But, 

again, I don’t want to rule them out in—— 

Ms. NORTON. The first time that I ever heard that an atrium 

saves energy. I would be most interested in that. 

Mr. PECK. Remember, the difference between an atrium and a 

light well, which we don’t count as gross square footage, is whether 

you put a roof over it. And the point of an atrium, the point of 

buildings like our headquarters building that is in the shape of an 

E, was that in the old days when you couldn’t get so much lighting 

and air conditioning and mechanical ventilation into a building, 

you need to have areas that were open. Getting daylight into a 

building reduces the energy that you require to put in artificial 

lighting. So that is one reason. 

Ms. NORTON. And as GSA has made some good progress on green 

roofs of various kind, if this is a variation on a green roof and you 

can show us that it saves energy, that is precisely what we are 

after. 

We are aware that the largest expense in building construction 

is the external skin, the curtain wall. So if buildings are, by volume, larger, they will be more expensive. And we believe we have 

a mandate not to—Mr. Peck, I have been on this Committee for 20 

25 

years. You haven’t been here all the time I have been on this Committee. When I came to this Committee, there was scandalous 

things being done to build courthouses. There were all kinds of— 

at taxpayers’ expense, there was overbuilding welcomed, given the 

kind of luxurious spaces, extra kitchens, extra lavatories, extra 

gyms. I mean, this was a scandal in the courthouse. 

Now, that has been drawn in. Now we are in overbuilding. I 

think I should be grateful, having been on this Committee for so 

long, that we are not building luxurious courthouses. There were 

actually judges who sat here who said that it was necessary for the 

administration of justice to have high ceilings, as if they had calculated in some way that justice would fall down if the ceilings 

were beneath a certain height. It was absurd. And it came from 

GSA—and here is where you need statutory help—GSA buying 

what some judges were saying. And, you know, we are Article 3 

judges. We have to deal with cases in controversy; ergo, we have 

to do with everything about the courthouse. 

Absolutely not. When judges begin to collect the money to build 

the courthouses, they will have that responsibility. As long as the 

Constitution gives us that responsibility, they are not going to peel 

off from the Congress the responsibility to stay within the mandated authorization of this Committee and of the Congress of the 

United States. 

So I am pleased we are where we are, given that I know where 

we have been before. 

I am going to ask the Ranking Member, before I proceed with 

further questions, if he has any questions. 

Mr. DIAZ-BALART. I do, Madam Chairman. Thank you very much. 

Mr. Peck, you just mentioned that you would rather come back 

to the Committee as opposed to just not allow you to do it for any 

cost increases, projection increases. Are you telling us now that before 2007, that was the case, and anything over 10 percent you 

would come back to this Committee? Are you committing now to do 

that again, to start doing that again; that if GSA sees that the cost 

is going to be 10 percent or above, that you would come back to 

this Committee as opposed to just move forward on it? 

Mr. PECK. Yes. Mr. Diaz-Balart, what I was referring to was the 

requirement we have in appropriations. If we go over 10 percent, 

we have to ask for a reprogramming. 

What I am saying is that if we think the square footage is going 

to go over 10 percent or whatever percent you choose, could be zero 

percent, on the square footage that we initially report, we are 

happy to come back and describe it to you and tell you the costs, 

obviously. 

Mr. DIAZ-BALART. I think what you need to do is come back and 

request an amendment of that authorization. And is that what I 

am hearing is that you would come back and request an amendment of the authorization? 

Mr. PECK. What I would prefer in the interest of management 

that is more efficient is some percentage of flexibility, because before we have to come back and get an amended prospectus, and 

here is why. 

Here is why, when we first come back to you with a design prospectus, it is based on a very generic program for a building. We 

26 

then have to apply it to a site that we acquire. All kinds of things 

come in. And things can move up and down in the square footage 

we need. And rather than have to come back to you, because then 

we have to wait for you to have a hearing and a markup, I would 

rather have some leeway in there, but with the understanding that 

we would always report a square footage and perhaps have your 

staff at least have some leeway in there before we have to amend 

the prospectus. 

Mr. DIAZ-BALART. We are now—just to make sure we are understanding each other, what used to be the case was over 10 percent 

is when you would come back. Ten percent leeway is leeway. Now, 

even for Federal standards, 10 percent leeway is a heck of a lot of 

leeway. 

What I am asking you is do you not think—which is what you 

used to do before 2007—that you would come back to the Committee to ask for an amendment if it is above 10 percent? What is 

the right number? How much leeway; is it 30 percent, 20 percent, 

50 percent? You don’t think 10 percent is enough leeway? 

Mr. PECK. I think 10 percent—like I said, 10 percent would be 

enough leeway to not have to come back to the Committee. And 

anything, if we hit 10 percent, we should have to come back to the 

Committee. 

Mr. DIAZ-BALART. For an amended authorization. All right. I just 

want to make sure, because—again, I want to make sure of that. 

Our frustration, and that is why we speak with one voice here, is 

because we keep hearing—I hate to say this, with all due respect— 

a lot of excuses du jour. Again, you are saying that you want leeway. I ask you 10 percent; I got your answer. I am not going to 

hound on that. So we do expect, because, as you just said right 

now, that you would have to come back to this Committee for authorization, for an amendment authorization of anything over 10 

percent, correct? 

Mr. PECK. Yes, sir. 

Mr. DIAZ-BALART. OK. Great. 

Now, Mr. Ponsor, we all understand the importance of making 

sure that judges have the space they need. But regardless, it is 

very difficult to argue, and this report confirms it, that there are 

not empty spaces and courtrooms that are overbuilt. And yet when 

I heard your testimony, it was—and, again, very respectfully, I 

want to make sure I didn’t misunderstand. I am almost hearing the 

fact that, yes, you said there are six suggestions that you like, but 

almost kind of justifying this overbuilding as if it really wasn’t happening. 

And let us focus on some outcomes, specific outcomes. Let us 

focus, for example, on in Long Island or Washington, D.C., or even 

in Miami where I am from. Are you going to tell me that those are 

not seriously overbuilt? 

Judge PONSOR. I am not going to tell you that there isn’t overbuilding in those three courthouses that you just identified. I have 

been to the Islip courthouse. It was built larger than it should have 

been. I agree with you. 

There are specific reasons with regard to the Miami situation 

that I think help to explain what happened. I am not going to sit 

here and try and justify it to you. When I read in the report, I will 

27 

tell you frankly, that they have 2,800-square-foot district courtrooms in the Miami courthouse, I was like the cartoon character 

whose hat flies up in the air with a big exclamation mark next to 

it. We have 2,400-square-foot courtrooms. That would not happen 

today. We are tightening things down. Those courtrooms should not 

be 2,800 square feet, and I am committed to controlling that. We 

were talked into that, I am told, historically—it was not on my 

watch—by judges saying that they need 2,800 square feet because 

they have multidefendant trials. I have a 27-defendant drug gang 

coming before me. Don’t tell me that Miami needs extra big courtrooms because they have multidefendant trials. We have an obligation to control that. 

Now, we do have the building there that is contaminated with 

mold. That is no longer on our rent rolls. We have had to take it 

off the rent rolls. The Ferguson Building does have problems. 

There is a complex there that has difficulties. But I am not going 

to sit here and tell you that the building in Miami was one of our 

good planning days. 

As far as the Prettyman Building here in Washington, D.C., I am 

frightened to even get into a conversation with you about it because you know it much better than I do. The only thing that I can 

say about the building is that it is one of those situations where 

our resources really can’t be overwhelmed. We are maxed out on 

that site. That is going to be the courthouse for the next generation. We have got to have the resources to deal with what is going 

to be thrown at that court. We have nine judges in that court right 

now who are very close to coming into senior status; they are going 

to keep working, we are going to need space for them. They have 

a high security courtroom there with the plexiglass security screen. 

They have an Internet hookup with Gitmo for some of the proceedings related to Guantanamo. 

That is a court that is very heavily used. It is also being used 

by the Washington Superior Court. It is being used by the Court 

of International Claims. It is one of those courts that, like my good 

friend Judith Resnik talks about wanting to use, we want to use 

the courtrooms more. We don’t want them to be empty. 

But let me say one thing about capacity and the fact that some 

of the courtrooms are not always being used. I know this may be 

an awkward analogy, but it occurs to me. My son, who I am very, 

very proud of, is on his third deployment in Iraq right now. He is 

up in a helicopter. They send the resources over there not to deal 

with averages. They don’t send the resources over there to deal 

with minimal demands. They have to deal with anything that is 

thrown at them, and they have to have the capacity for the peak 

demands. 

We know these peak demands are going to be coming along. We 

need our courthouses. We are the institution that cannot be overwhelmed. We have to have the resources. 

If I can shift my analogy, it is like a power grid. The power grid 

is not designed to deal with averages; it is designed to deal with 

peak demands. We know the Augusts are going to come along, the 

hot weather is going to come, and we have to have the resources. 

Mr. DIAZ-BALART. But, sir, with all due respect, we can all start 

talking about in general terms about where, what we need. But 

28 

when you look at the actual facts on the ground, we are way beyond that. We are way beyond that. You know, the D.C. One, it 

was designed for 41; 10 years later we are, what, 39 judges. 

So I don’t care what analogy you use, sir, power outages, power 

companies, you are way beyond that, you know. And I am glad, by 

the way—and let me first thank your family for its service to the 

country. Yours, but also your son’s, which is important to know, 

and it is important to recognize it. 

Judge PONSOR. Thank you. 

Mr. DIAZ-BALART. But using that in context, $800 million in overspending, that is a heck of a lot of armor for helicopters that we 

are not funding, et cetera. So let us put it in perspective. 

Here is the bottom line, because we can talk about specifics all 

day long. I think the report has a lot of specifics. I would respectfully ask also what Mr. Goldstein said, that you all reread that report and look at the bottom line. And as opposed to coming up with 

all sorts of reasons why the overbuilding took place and all sorts 

of excuses as to why the overbuilding took place, that we figure out 

and we find ways to stop it. Not to just look at, oh, yeah. No. How 

do we stop it? Because you are looking at real numbers here, real 

money. And as the Chairwoman said, particularly in tough times, 

we have to be even more conscious of that. 

Judge PONSOR. If I could respond for a minute and a half. It is 

a painful accusation. 

Mr. DIAZ-BALART. It is not an accusation. 

Judge PONSOR. In my mind, most respectfully, it is an accusation 

that is not fully supported. And I agree that there should be no 

overbuilding, and I agree that individual courts can be criticized. 

But the criticism contained in this report is very substantially exaggerated, in my opinion. And I understand, anyone would be concerned at an $835 million waste of taxpayer money. 

In my opinion, the amount was nothing like that. And that number, to allow it to hang in the air without response is something 

that I really can’t do. That number is an unfair and exaggerated 

number, in my opinion. Let me give you a specific example. 

Mr. DIAZ-BALART. You will have the opportunity to respond. 

Judge PONSOR. And we will. In my courthouse they say we are 

10 to 20 percent over the authorization. I asked my people to pull 

the construction prospectus. The construction prospectus is 158,755 

gross feet. The final courthouse is 162,000 gross square feet. I am 

surprised we went over even by that much, because we cut one 

courtroom out of the process when we were going through it. We 

were really killing ourselves to try to keep this courthouse down to 

what it should be, and I think we succeeded. We are 2 percent 

over, not 10 to 20 percent over. That is the fact. And I don’t know 

about these other numbers. I don’t have the GAO working papers. 

And we have been given nothing from them to work with. 

Mr. DIAZ-BALART. And I think it would be unfair now to go into 

the specifics of every single issue, and obviously you are going to 

have the opportunity to look at that, to review that, and to get 

back. 

I do want to, though, mention another issue. I understand, for 

example, the L.A. courthouse, which is something this Committee 

has been dealing with for a long time, supposedly—my underVerDate Aug 31 2005 12:47 Sep 16, 2010 Jkt 000000 PO 00000 Frm 00038 Fmt 6602 Sfmt 6602 P:\DOCS\56725.0 KAYLA
29 

standing is there are fewer judges today in L.A. than there were 

over 10 years ago, which is when the courthouse was proposed. Is 

that L.A. courthouse still a huge priority for the judiciary? Number 

one priority, is my understanding. Is it still designated as a space 

emergency? 

Judge PONSOR. Yes. 

Mr. DIAZ-BALART. Can you explain why? 

Judge PONSOR. First of all, I want to compliment you, because 

you are doing a very good job of putting your finger right on our 

sore spots. The L.A. courthouse, as you know as well as I do, has 

been a huge difficulty for all of us. It remains our number one priority. It is a very important courthouse. It is, what, the second 

largest city in the United States, I guess. It is an important facility. I think the Chair has visited it. I have visited it. I have walked 

around the courthouse. 

It is a dangerous courthouse. It is a courthouse that is falling 

apart. It is a courthouse that is hard to try cases in. And we need 

a solution in Los Angeles. We do not have that solution right now. 

And we are going to work closely with you on anything that happens in Los Angeles. 

Mr. DIAZ-BALART. I appreciate that. 

Judge PONSOR. If you don’t want to call it a space emergency, it 

is an emergency. It is a very nonfunctional situation that is hard 

on the courts. I cannot comment on whether the number of judges 

has gone down. I just don’t know that. 

Mr. DIAZ-BALART. Well, again, here is where we are having a hard time understanding. This Committee authorized $400 million. 

Now, $400 million in anybody’s book is real money. 

Judge PONSOR. Yes, it is. 

Mr. DIAZ-BALART. I understand that. I guess the request is $1 

billion. You know, when we are dealing with—there are still unutilized—there is unutilized space there. Already you have fewer 

judges today than there were 10 years ago, my understanding. You 

have $400 million that has been sitting there. And the attitude is 

we have less judges, we have unutilized space, we have $400 million sitting there, and that is not enough. Now, you see that that 

is our frustration. 

Judge PONSOR. I can understand it. 

Mr. DIAZ-BALART. So I am not trying to pick on a specific issue, 

but here is what I think we need to see. We have a report that 

shows that there are serious problems. You have mentioned some 

specifics; you are saying that those numbers may not be quite 

right. Nothing is perfect in life, I understand that; however, I am 

telling you right now one case that we are familiar with, that this 

Committee is familiar with, L.A., I am not quite sure what the report says about L.A., but I don’t know if it is underreporting, overreporting. What I am telling you is that it is hard to argue the case 

of L.A., and yet it is still a huge priority. And you have $400 million sitting there, and that is not enough. Don’t you understand 

where our frustration comes from? 

Judge PONSOR. I certainly do. 

Mr. DIAZ-BALART. And do you not understand, sir, why the 

American people have to be saying this is totally broken? Four 

hundred million dollars is not enough in a situation where you 

30 

have, again, less judges today than when this thing was planned 

for. You have $400 million in the bank, you have unutilized court 

space, and it is still not enough. And people are losing their jobs. 

Judge PONSOR. Mr. Peck may want to comment on that. He may 

know better than I. 

Mr. PECK. Two things. One is on Los Angeles, I understand before I came back to GSA that there was an estimate at some point 

of a $1 billion project. We are trying to rescope the project; we will 

be nowhere near $1 billion, I can tell you that. I am aware of how 

much money we have in bank, and we are going to try to bring in 

that project as close to that number as we can. But it has not been 

built. So we have not overbuilt it yet. 

Ms. NORTON. Would the gentleman yield for a moment? When it 

was authorized, it was not $1 billion. But because you have let the 

money sit in the bank with costs, of course, construction costs, 

going up, somehow the people think this Committee—I regard this 

as nothing—it is not a stalemate, it is a strike. Congress said $400 

million it has got to be 10 years ago. They decided that wasn’t 

enough then. You come back. Yes, I understand you, Mr. Peck. It 

is $1 billion; it is probably more than that now. Does anybody really think we are going to get up off of more money for the L.A. 

courthouse? It can just sit there as far as we are concerned. 

Mr. PECK. Well, what I was going to respond to, we need to take 

a look at—I have heard this, too, that there are fewer judges than 

there were before. Normally when we hear that, it is because some 

judges who were on senior status have retired or have passed away 

or something has happened. But we will get back to you on that. 

But one thing I do want to clarify again. There is a bottom-line 

number here that I have alluded to that I want to say again so that 

we can get over the $835 million number. We added up the appropriations that we got for the 33 courthouses studied by GAO. The 

total appropriated dollar amounts—and these are completed buildings—was $3,046,000,000. And the funding required for completion 

was 3,314,000,000. So that was an increase overall of about 8.8 

percent. 

So just so we don’t—just so we get out of this sense that there 

has been some huge overbuilding of the program, I am just telling 

you that we held to within 8.8 percent of our budget. And I have 

to tell you, having just come out of the private sector projects, that 

is a pretty good record as well. 

Mr. DIAZ-BALART. Again, a couple things. There seems to be, 

however, a consensus—and nobody is denying that we are 

overbuilt, number one. Number two is almost 9 percent—being 

within 9 percent of the budget is not exactly something that I think 

any of us should be proud of. 

Mr. PECK. No, sir. But in a period in which construction costs escalated for various reasons in this country, because we were building in a period generally of an industry boom, construction costs escalated by about 58 percent during that period, and we held our 

costs to an 8 percent overage. So I am just telling you there are 

reasons. I am only—when I say I am really proud of our project is 

when it is on time, on budget, and now as we now say on green. 

31 

Mr. DIAZ-BALART. And I agree, that is when we should be proud. 

Again, there will be ample opportunity to discuss the real specifics 

of the report. 

Let me just go to another issue, if I may, Madam Chair. The 

issue of how—the estimates of how many judges are going to be 

there in the future, and that is obviously something that has not 

worked. I am not pointing fingers or blaming anybody. It was not 

done on purpose, but we know it doesn’t work. We know those estimates have not been accurate. Are you looking at changing that? 

Are we throwing that out finally because we know it is not working, and coming up with a more accurate way of determining, of 

making those estimates? 

Mr. PECK. I think we have already thrown it out. We at the beginning of this program back in 1993, 1994, whenever you count 

the beginning, I believe we were looking at 30-year requirements 

on the court. We were assuming that there would be judgeship bills 

coming rather regularly. That has not been the case, but we have 

not made those kinds of projections on recent courthouse designs. 

But as I said in my testimony, we are in conversations with the 

courts, and we would—I believe all of us, including you and the 

Members of the Committee, need to come together and reach an 

agreement on how we do project needs for courthouses as we go forward, because all of us, it is not an easy business, but we sure 

ought to have an agreement on how we are going to go about doing 

it. 

Mr. DIAZ-BALART. We have a long list of knowing that it is not 

working. 

Mr. PECK. That is correct. 

Mr. DIAZ-BALART. And that is not recent. That is 20 years or 

whatever that may be. 

Now, the issue of courtroom sharing. You know, I do want to just 

very briefly—I mentioned a little bit at the beginning, it makes no 

sense to me why we are not doing a lot more of that. A lot more 

of that. Is it a little bit more difficult to share? Maybe. But, you 

know, there seems to be a trend now around the country where we 

have to more thoroughly utilize the people’s assets, and this is one 

where we clearly can do a much better job. The report shows it. 

The Committeehas been saying it. The Chairwoman has been saying it for a long time. And I hope that is not something that is also 

swept under the table, and that we don’t just look at ways why it 

cannot be done as opposed to look at ways how we are going to get 

it done and how we are going to figure out how to get it done. 

If the report’s actual way of getting it done does not fulfill your 

needs, then I would like to see how you are going to get it done, 

not how you are not going to get it done and why it is impossible 

to do it, as opposed to, all right, that may not be the right way. 

Let us figure out a way to make sure we utilize those courtrooms, 

that they are shared, because that is happening throughout the 

country in schools and in public buildings, and it makes no sense 

that we cannot do it with the courtrooms. I mean, I don’t know if— 

I think the American people are just fed up from Congress, from 

the administration, and from every other segment of government 

with bureaucratic answers as to why we can’t share space, why we 

32 

can’t do these things, as opposed to figuring out ways to get it 

done. 

Are we expressing that? Is that getting across today? 

Judge ROBINSON. Congressman, we agree. We agree that we 

should be good stewards of taxpayers’ money, and that contemplates that we seriously consider courtroom sharing. And we 

have been responsive, the Judicial Conference has been responsive, 

and are now being proactive in that effort. 

When we first started talking about this issue in 2005—and I understand there were many years of talking about it before that. But 

in 2005, when Congressman Shuster really charged us to go back 

and start studying this, we did that. And we have enacted a 2–1 

sharing ratio for senior judges, a 2–1 for magistrate judges, a careful and considered study of bankruptcy judges. And we are going 

to go beyond that and try to determine what kind of economies of 

scale we can accomplish, particularly in the larger courthouses 

with more than ten district judges. So we take this very seriously. 

But there are so many things in the balance that’s what I want 

to suggest to you and to tell you today, and one is that we also 

have a duty to taxpayers and citizens or noncitizens, whoever they 

are, who come into our courtrooms, to give them a place where they 

can resolve their situations without too much undue expense. And 

for every time we reschedule something or continue something, not 

to mention any talk about moving a trial or a hearing some distance away, we are talking about real costs shouldered by the very 

people that you are talking about as well. They are paying their 

own expenses, but they are paying their attorneys’ fees and attorneys’ expenses. And oftentimes all of it is at the taxpayer’s expense. 

I think Representative Johnson spoke of being a litigator both in 

criminal and civil cases. And I don’t know if any of his cases involved appointed cases, but oftentimes it is the taxpayers that are 

shouldering the entirety of the criminal case. So when you talk 

about rescheduling or moving, you are talking about real dollars 

and lots of dollars. That is part of the balance that we are attempting to strike. 

We could look at averages, and we can look at models, but it 

doesn’t replicate what goes on in the real world. And that is why 

we have to consider the experience that we continue to have in litigating these cases. And I have read the GAO study. I take issue 

with Mr. Goldstein. I have read it, and I have read it again, and 

I can read it right now. And what it will not tell you is what their 

assumptions are. 

There are underlying assumptions for that modeling. In my remarks I tried to glean what some of those assumptions would be 

based on some of the things in the report, such as 1- to 2-day average trials. I have never had an experience of having a 1- to 2-day 

criminal trial. I think most district judges will tell you that it takes 

the good part of 1 day to select the jury in even a small, short-term 

criminal case. The defendant has a right to a jury trial, both sides 

have a right to select a jury, a jury that is going to be of their 

peers, but also a jury that is going to be objective and impartial. 

There is no such thing, in my experience, as a 1-day criminal trial 

for that reason, or even a 2-day criminal trial. 

33 

Similarly, with civil jury trials, even though they may be short, 

to say that any modeling is based on that assumption—and I don’t 

know that it is. Again, I don’t have their assumptions. To say that 

it is a 10-hour trial day doesn’t replicate what goes on in the real 

world. We are talking about human beings. Jurors can’t sit there 

and listen to evidence for 10 days and process it. The court reporters can’t report for 10 days straight and process it, even with an 

hour off for lunch. 

I mean, there are limitations. And that is why I appreciated 

what Congressman Johnson had to say for those of us in the field, 

if you will, who are on the ground. Our experience matters, and 

that is why my committee, along with the—well, the FJC is the one 

that conducted the study. But those findings have to be evaluated 

in the context of human nature and the experiences that we have 

had in our many years of collective judging experience. 

Mr. DIAZ-BALART. And nobody is arguing that. Nobody is arguing 

against that. 

On that point, though, by the way, let me just ask GAO, in some 

of the courthouses, a few of the courthouses where there is sharing, 

do we know if there has been a horrible issue of delays or moved 

cases, et cetera? 

Mr. GOLDSTEIN. I would raise a couple points, sir. First of all, 

Judge Robinson is again not correct about the assumptions she is 

making in her report. And so I can only reiterate that she is 

misreading it, and I would encourage the judiciary in their comments to read it carefully, because what she is saying is simply not 

accurate. She is mischaracterizing our report in many regards. 

With respect to the question you are raising, sir, we had numerous interviews with judges, with clerks and others across the country in this report in our work. We went out into the field and we 

went to many different courthouses, particularly courthouses that 

have shared. Combination of real-life experience as well as the 

models that we developed show that there have been no delays. 

The model shows that there will be no delays. 

If you look and recall page 24 of our report, the Federal Judicial 

Center’s own data shows that, on average, a district courtroom is 

used by a judge for court-related purposes 2 hours a day. The rest 

of it is either not used or used for other purposes. 

Mr. DIAZ-BALART. Where do those numbers come from? 

Mr. GOLDSTEIN. The FJC, based on the study they did. On its 

face sharing can be accomplished. The degree to which sharing is 

accomplished should be up to the judiciary. We are not suggesting 

that they follow our model exactly. They can develop their own 

model, their own parameters, their own assumptions. But I would 

add, the parameters by which our model was developed was not 

done by GAO. The parameters of our model was based on the National Academy of Sciences panel that we put together that we 

asked the National Academy to do. It consisted of a 1-day session 

as well as numerous other interviews that we did with roughly 24, 

25 panel members. It was a discussion of conditions of and challenges to sharing, and it is from there that the parameters were 

developed. They weren’t developed by GAO. 

Mr. DIAZ-BALART. Here is the issue. I mean, again, and I keep 

saying, I don’t think this is the moment to start talking about the 

34 

specifics of every single issue of every single detail. However, I am 

not a lawyer, but I know that for lawyers in particular, words matter. And I would just like to say, as opposed to consider sharing, 

no; that you look at ways to make it happen, to figure out ways 

to make it work, as opposed to you are going to consider whether 

there should be sharing. 

There is a consensus on this Committee, and, you know, I understand that there may be and there is going to be ample opportunity 

to review the numbers, and there may be some discrepancies, and 

there may be some differences of opinion as to if the model is perfect, if it works. But as you just heard, nobody is saying that you 

follow that particular model. 

But I think what you are hearing, and I just want to make sure 

that it is clear, is not that you should consider whether courtrooms 

should be shared, but you should find ways to share courtrooms. 

And I just want to make sure that I am not—that that word was 

not used—how you are using that word. 

Judge ROBINSON. You are exactly right, Congressman DiazBalart. And you are right, we are wordsmiths. And the point I 

want to get across is that we are not considering sharing—we have 

been considering sharing ratios. We have been sharing. I think if 

GAO or anyone else went across the country and talked to judges— 

and the study encompassed a much broader questionnaire and requests for experiential information—you would find that many of 

us, I would say most of us, at one time or another have shared 

courtrooms either because a courtroom is out of commission, or 

there was a shortage of courtrooms, or we were in an historical 

courthouse where there simply weren’t enough courtrooms, or one 

of us was engaged in a particularly long trial. I have actually had 

to take another trial to another division in my district because of 

high-profile concerns and because of the length of the trial and because my courtroom wasn’t large enough to accommodate it. We do 

share. 

What we have been trying to do and study very deliberately and 

with great consideration is what the appropriate ratio ought to be, 

particularly as we are looking forward. But to say that we are only 

considering sharing is not correct. 

And I do take issue with the comments made about the judiciary 

not appropriately reading the GAO report. We are hampered by the 

fact that we don’t have the assumptions underlying this modeling. 

I wish we did. And if we did, I would be here to address them more 

specifically. I have tried to glean what I think some of those assumptions might be from certain statements made in the GAO report. And some of those statements, I think, in fact, come from 

comments that were made by the select group of judges that the 

GAO talked to. And it is interesting, because I have talked to some 

of those judges, and they are very upset because their statements 

and views were misrepresented. All of them said, yes, short-term 

or as-needed courtroom sharing can be accomplished. We know this 

because that is our experience. We have done it. But to say that 

that does not result in longer delays is not at all consistent with 

any of our experience. 

If we have to all share 2–1 going forward from here on out, you 

can bet that at some point you are going to be wanting to conduct 

35 

a hearing because there are going to be a lot of litigants that are 

going to be costed out of our system when they have to wait twice 

as long to get to trial. That has been our experience, and that will 

continue to be our experience, because that is the way this works. 

Now, and to talk about collegiality and the sharing of courtrooms 

and scheduling of courtrooms, that is a small piece of the algorithm 

of all the variables that we have to consider when we are trying 

to get our 300 or 400 or how many cases it is into trial within a 

3-year period. Congress has tasked us with getting a civil case to 

trial within 3 years. Under the Constitution, and as augmented by 

the Speedy Trial Act, we are tasked with getting a criminal case 

to trial—jury trial—within 70 days with some exceptions. And 

these are things that are part of our critical mission, but also 

among the so-called variables that we deal with on a daily basis 

when we are trying to get these courtrooms scheduled and ready 

for trial. 

Does that mean our courtrooms always have the lights on and 

are used every minute? That does not mean that, because, as you 

know and I know, with civil cases and criminal cases, ultimately 

the large percentage of them do settle. But we need the readiness 

of the courtroom. And it is because of the readiness and availability 

of the courtroom that we are able to even get those cases in that 

posture. 

A lot of this has to do with human behavior. A case is not going 

to settle if the lawyers know that you don’t have a courtroom ready 

and available for them to go to trial, because they are going to be 

working on their other 50 cases that they have got in their quiver 

or their inventory. 

I see Congressman Johnson laughing; it is because he has been 

in the trenches and he knows that is how it works. You work on 

the thing that is the most pressing and the highest priority in your 

inventory. 

So it is an important tool. Whether it is latent use or actual use, 

the availability of a courtroom is what makes our system work. 

Mr. DIAZ-BALART. When you all come forward to us and asking 

for additional space, do you put in there latent use of space? Is that 

part of it? Or is it—I have never heard that. 

Judge ROBINSON. That was part of the FJC study. By that we 

mean the example I gave you earlier, that when I have 10 civil 

cases set for trial, I stack them. That is the only way I know how 

to efficiently do this. All but nine have settled. If that last case settles, and it is about 2 or 3 weeks out from going, then I am going 

to have a 5-day period of latent use, meaning that that case was 

scheduled for trial, but for whatever reason they have now settled 

it. And I can’t move another week-long trial in there. 

Now, I can fill part of that time. I can find some criminal hearings where the parties are ready, and I am not going to be violating 

due process to move them into a slot, because I have to take those 

things into consideration. I can’t force people to go to trial before 

they are ready because there are due process considerations. I can’t 

force them to go to a hearing before they are ready, sometimes because there are due process considerations. But I can find some 

time to fill part of that, but I cannot move another week-long trial 

and fully fill that space. That is what we call latent use of a courtVerDate Aug 31 2005 12:47 Sep 16, 2010 Jkt 000000 PO 00000 Frm 00045 Fmt 6602 Sfmt 6602 P:\DOCS\56725.0 KAYLA
36 

room, knowing that it is scheduled, but it may not ultimately be 

used. 

Mr. DIAZ-BALART. I understand that, and I think the model did 

account for that. But however, look, again, I just want to make 

sure that you understand. You can’t take humans and human nature out of this process. I understand that. I do think, however, 

that there is a pretty strong case that we have clearly overbuilt. 

There is a very strong case, I think hard to argue against the fact 

that—which you all agreed to, that the process that we have been 

using to determine what the needs are is not accurate. 

I would tell you that those two issues are, as the report said, and 

something that this Committee is arguing for a long time, we 

haven’t had cooperation, frankly, of people agreeing with us until 

now. But I am glad that people are now agreeing with us. 

So is there a possibility that the models are not accurate? Yes, 

of course, because of human nature. However, I would respectfully 

tell you and I would like to say that it is very difficult to believe, 

to understand from our perspective that we cannot do a much better job, we cannot do more sharing, et cetera. 

And because the Chairwoman has been too generous with our 

time—— 

Judge PONSOR. May I say something to reassure you, Congressman Diaz-Balart? We aren’t considering sharing. We are sharing. 

All of the courts on our current 5-year plan have sharing. Anniston, 

Alabama—sharing. Charlotte, North Carolina—sharing. Greenbelt, 

Maryland—sharing. Greenville, South Carolina—sharing. We have 

sharing. We are applying our sharing policies for magistrate judges 

and senior judges in all of those courts that are on the 5-year plan. 

It is not under consideration; it is happening. 

Mr. DIAZ-BALART. I understand that. There is no doubt that we 

can always do better, and I think this report shows potential ways 

to do better, and I hope that we take those seriously. 

I do want to end with one point, however, going back to the L.A. 

courthouse. I think you heard from the Chairwoman and you hear 

from me, and I think you have heard from this Committee and the 

Full Committee, that this constant request to go from $400 million 

to $1 billion or whatever it is—— 

Judge PONSOR. That is not happening. 

Mr. DIAZ-BALART. OK. And I just hope that we don’t see that 

again. Thank you. That alone would be a huge step in the wrong 

direction. 

Judge PONSOR. That is not happening. 

Mr. DIAZ-BALART. Thank you. 

Ms. NORTON. Well, I appreciate that Mr. Diaz-Balart wanted to 

clarify that. If you hear some exasperation here, it is not because 

of the witnesses before us; it is because this issue has plagued this 

Committee for so long. For example, the L.A. courthouse. What a 

thorn in our side the L.A. courthouse has been. You all want to let 

the $400 million rot, so be it. But we could not in good conscience 

say, well, since they delayed 10 years, let us throw $1 billion at 

them. 

And also, before I go on to Mr. Johnson, I want to clarify this 

notion of the trenches, the notion that you are before people who 

don’t understand the practice of the law. The Committee is full of 

37 

lawyers, and the Subcommittee, including your chair, not only is an 

attorney who practiced before the Federal district courts, the courts 

of appeals, and the Supreme Court of the United States before she 

was elected; your chair also clerked for a very distinguished district 

court judge and saw up close how the system operates. 

I am now a Member of the United States Congress. Above all, 

I understand the separation of powers, and I understand the difference between our responsibility and yours. I have the utmost respect for the judiciary, but I ask you to respect the separation of 

powers as well and to understand that this Committee, which enjoys the broadest consensus on this issue, will be held accountable 

if we do not hold the courts and the GSA accountable as well. 

Mr. Johnson, have you any questions? 

Mr. JOHNSON OF GEORGIA. Thank you, Madam Chair. 

I would let you all know that, no, it was not any appointed cases 

that I tried. They were all paid, private-paid cases. And never did 

any advertising, you know, maybe other than an occasional Yellow 

Page ad that really didn’t work, or in a local newspaper, something 

like that. But my 27 years of practice in private practice—I opened 

up my law office when I got out of law school, literally hung a shingle up and started practicing law. 

So I am proud of my humble beginnings, and I am proud of how 

far I came. And I got there based on word of mouth and reputation, 

and so my reputation among those who employed me and recommended me, and who I tried cases in front of and opposing counsel, they all know that when you have got Hank Johnson in the 

room, that he was going to be prepared. He was going to know 

what the issues are or were. So I bring that same skillset to this 

position. I am very proud to serve on the Transportation and Infrastructure Committee. It is a very important Committee. 

Another one of my assignments as a congressman is as the chair 

of the Courts and Competition Subcommittee of the Judiciary Committee. Wearing the hat as chair of the courts, let’s leave off the 

other part of it, let’s just deal with the court’s aspect of the Judiciary Subcommittee, I work closely with judges. 

Now I know why the judges in the Judicial Conference are so enthralled with the fact that I am there. It is not because I am me, 

Hank Johnson, it is because they have a lawyer who has actually 

practiced and yes, in the trenches, who can utilize that expertise 

to assist our judiciary, which, quite frankly, has been under attack 

in this country since the 1980’s due to decisions such as Brown v. 

Board of Education and others where politicians who sit in these 

great big, hundred-foot ceilinged committee rooms that are 

humongous in size, but yet not very often do we have the Full 

Committee meet. And when we do, it might be for 2 or 3 hours. 

No judicial officer took part in deciding how much space we need 

for a committee room. No executive officer, the President didn’t 

come in and say I am going to tell you how much space you need 

and when you will have to share. Everybody respected the fact that 

the legislature should control its use of the space that it decided 

to build. And I will tell you, we have a lot of space in this building 

where there are committee rooms set up that we don’t even use. 

And if we had somebody to take a look at that, they could always 

sling arrows at us. Every Committee Chairman wants to have a 

38 

hearing room that he or she can call home, and every Subcommittee Chair has a room that they can call home. It is the committee room. 

So a lot of those Subcommittee rooms don’t end up being utilized 

very much, but I am going to shift now from my perspective on the 

issues that we are dealing with here today, having given my experience and having shared with you my frame of reference for making the comments that I make, and also making sure that people 

understand that I said at the end I am going to ask questions, I 

am going to learn more. 

I have never been to the Los Angeles courthouse before. I have 

no idea about that, but I will tell you I do have an idea about one 

branch of government dictating to another branch what that 

branch thinks it needs without having a good appreciation of the 

real world. And so I will always be standing up for the third 

branch of government, the third equal branch of government. 

I will say this: When I was practicing law, Monday morning, 8:30 

a.m., going to the courthouse, driving by the courthouse, I would 

see a long line of people, jurors, litigants, witnesses, some law enforcement waiting outside in the cold and in the wind and in the 

rain trying to get into the courthouse. That is one of the big reasons why atriums are a great idea. Those people have to be afforded some kind of comfort. That is why we have a justice system 

as the third branch of government, and we should not dog the people out who we are dispensing justice to. And I fight for that. 

I am going to ask a couple of questions. Mr. Peck, your role at 

GSA public building services is to overseeing Federal courthouse 

construction; is that right? 

Mr. PECK. Yes, sir, and management. 

Mr. JOHNSON OF GEORGIA. And management. 

Now, with respect to the 33 courthouses completed since the year 

2000, including 3.56 million square feet of extra space that has cost 

the government an extra $835 million we are told to construct, and 

an extra $51 million to rent, operate and maintain, can you tell the 

Subcommittee how those figures were arrived at? 

Mr. PECK. Again, it is the GAO’s report. But what they did, they 

estimated the amount of square footage due to various causes that 

they felt was overbuilt in the courthouse, including, as I noted, 

atrium space, double height courtroom space, that counts as gross 

square footage technically. They multiplied that, what they calculated as gross square footage, by the average dollar amount it 

costs per square foot to build a courthouse, and calculated that as 

the excess cost, that plus some other scope increases. 

As I noted, that may be an interesting calculation, but we do 

have real numbers on how much it cost us to build the courthouses. 

And the real number that we had, as I noted, and my numbers are 

based on 32 of the 33 courthouses, I am noting, is that we appropriated $3.46 billion and change, and we built them for $3.314 billion. The difference there is $268 million. So in other words, the 

calculation that GAO made was a theoretical calculation, and we 

are saying that the assumptions on which they were made were erroneous. 

Mr. JOHNSON OF GEORGIA. So you disagree with GAO’s findings 

in that regard? 

39 

Mr. PECK. Yes, sir. 

Mr. JOHNSON OF GEORGIA. To the tune of about $268 million? 

Mr. PECK. Yes, sir. 

Mr. JOHNSON OF GEORGIA. That is a lot of disagreement; $268 

million worth of disagreement right there. 

When did GSA adopt a policy for measuring gross square footage 

of courthouses? 

Mr. PECK. Well, we have adopted different measures, different 

ways of measuring square footage. I am going to have to go back 

and see. My information is that we formally adopted a new measure somewhere in 2005, 2007. Mr. Goldstein says it was back in 

2000. 

The point I would make is that the way of measuring what 

counts, it is not how big the building is. The building is as big as 

it is; anybody can see it by looking at it. The question is what 

counts as square footage for various purposes. And the issue we 

have had before the Committee, Congressman, is when we first 

bring a proposed authorization to the Committee, we have only a 

very generic program for a courthouse. And as we build it out, we 

come up with more detailed square footages. What we have a good 

record of doing in most instances, I will say Los Angeles is an exception, is holding fairly rigorously to the budget, the dollar budget 

we first came up to, and the square footage tends to move around. 

Mr. JOHNSON OF GEORGIA. According to GAO, GSA relied on the 

architect of the building to verify the size of the building and did 

not expect its regional or headquarter’s officials to monitor or check 

whether the architect was following GSA policies. Is this an accurate assessment of GSA policy at the time? 

Mr. PECK. I think in many cases it is, yes, sir. The architects and 

engineers, as I said, there are various standards that people use to 

decide what counts as gross square footage and what counts as 

rentable square footage, and net square footage is an entirely different measure in many cases. So in a lot of cases, we asked the 

architects to measure the square footage. We changed that so we 

now do our own independent evaluation. 

So what happened here is that the square footage that an architect reported may not have been the same as our standard, and so 

what got counted as square footage for various purposes can be different even though obviously the size of a building is the same. 

To make a long story short, I think in some cases, the architects 

and engineers whom we hired and said give us your calculation of 

the gross square footage did it on a commercial standard that they 

are used to, and may not have been the standard we were reporting to the Congress and in fact using ourselves. 

Mr. JOHNSON OF GEORGIA. Judge Ponsor, to what extent are you 

or your office consulted by the GSA during its construction and operation of courthouses? 

Judge PONSOR. We work very closely with GSA, particularly in 

the areas where judges have special expertise. It is GSA’s responsibility, and they are the ones who are in charge of the construction 

project; but they consult closely with judges as the construction 

unfolds. And I played a part in that process. For example, when we 

were designing the courtrooms, GSA built a plywood mock-up, a 

very inexpensive mock-up of the courtroom which I visited along 

40 

with lawyers and assistant U.S. Attorneys, and we scoped out the 

sight lines in the courtroom to make sure that I would be able to 

see the witness from where I was sitting and the jurors could see 

the attorneys. We played a role in that manner. I did participate 

in discussions as the courthouse was being built. 

Now the people in charge were GSA, but they were open to listening to us and listening to our suggestions. I would add that part 

of the meetings were also attended by a senior staffer of Representative Richard Neal’s office who ultimately had an office in the 

building and had an interest from the point of view of the community in making sure that the process moves along in a measured 

way and that we had a courthouse that corresponded with the 

original concept. 

Mr. JOHNSON OF GEORGIA. Are you saying that you had a legislator in there helping to determine the use of courtroom space? 

Judge PONSOR. No. Let me make that very clear; no, we did not. 

But we had a GSA representative, an architect representative, and 

a contractor representative and various other people. We were interested in knowing the timing of how fast things were going along, 

whether there were going to be delays, what the courthouse ultimately was going to look like, and whether we were going to vindicate the architect’s design concept that had been approved and authorized by this Committee. 

Mr. JOHNSON. So there was no nefarious intent on the part of the 

legislator? 

Judge PONSOR. None whatsoever. 

Mr. JOHNSON. And certainly the Judicial Conference and the 

GSA have not been involved in a conspiracy to defraud the taxpayers by overbuilding courthouses; have they? 

Judge PONSOR. Absolutely not. I think that is the most painful 

thing to read about in the GAO report. I can tell you, we were honestly not trying to deliberately mislead Congress at any point. You 

build a building out in the open. We were very transparent. I think 

we came in with a really tight project. There was no effort, no desire, no intent to horn-swaggle anybody as we were building our 

buildings. 

I am pleased, and I embrace the recommendation, and I know 

Commissioner Peck embraces the recommendation that we will inform you, we should inform you when we go more than 10 percent 

over the approved prospectus. I think that is a fair and a good suggestion, and it is a way that we can tighten up the process. But 

really, we were not trying to mislead Congress or thwart any intent 

of this Committee or of Congress. We understand that you have 

that sphere of responsibility, and we have every interest in making 

sure that you can do your job. 

Mr. JOHNSON OF GEORGIA. Thank you, Judge Ponsor. 

Judge Robinson, what is your committee’s role in assessing— 

well, let me ask the question like this: At least 10 years ago, caseloads were projected. The number of judges projected, the number 

of courtrooms to serve those judges projected. How do we go about 

making those projections? 

Judge ROBINSON. The projection for number of courtrooms or 

judgeships? 

Mr. JOHNSON OF GEORGIA. Both. 

41 

Judge ROBINSON. My committee does not have a role in that. 

Court Administration and Case Management, CACM, has the 

broadest jurisdiction of all of the committees in the sense that it 

deals with any issues that deal with court administration or case 

management. The reason we are taking the lead in terms of the 

courtroom sharing ratio is all about case management because we 

understand that we need to strike a balance between sharing and 

cost containment. Those are very important objectives. But at the 

same time, we must have effective case management, ensuring constitutional rights, statutory rights, that the litigant’s expenses are 

not out of control because of our delays or because of the requirements we place on them, in terms of moving from one place to another. So it is our role in case management that causes us to be 

the lead committee on this particular issue. 

Mr. JOHNSON OF GEORGIA. Do you agree with the GAO’s findings 

that question the judiciary’s caseload projection methods? 

Judge ROBINSON. Again, that is not something with which I have 

particular familiarity. It is our Judicial Resources Committee in 

part that looks at that and does statistical analysis. But understand that we project on the basis of a number of things, and some 

are assumptions based on demographic shifts and those sorts of 

things. We would expect that they wouldn’t be perfect projections. 

For example, I was a bankruptcy judge for 8 years before I became a district court judge, and I don’t think any one of us could 

have projected 10 years ago what the bankruptcy filings would be 

now with any accuracy because we couldn’t have projected that the 

economy would be in the state where it is now with any accuracy. 

So many of these projections are based on things that none of us 

can predict, and all of those have very direct effects on caseloads, 

weighted caseloads, filings, the need for judgeships, and all of those 

things. 

Judge PONSOR. If I can just chime in on that since the Space and 

Facilities Committee does do some projections, I guess I can put it 

this way. If anybody has a crystal ball, we could use it. If anybody 

can see perfectly where we will be 10 years from now, we would 

be happy to know. If anyone has a method to help us do that, we 

are constantly trying to refine our methods. We use different statistical approaches to try to triangulate to make our projections as accurate as we can. 

We don’t want resources we don’t need. We are not trying to get 

resources that can’t be used. But this process of projecting is very, 

very difficult. For example, between 1970 and 2000, there were 

over 400 new judges authorized, a little over 100 a decade. 

In the 10 years between 2000 and 2010, Mr. Goldstein criticizes 

us by saying we were 119 judges over in our estimate. If we had 

congressional judgeship authorization bills during that 10 years 

that were even the average of the preceding 30 years, we would 

have been received 100 additional new judges. That didn’t happen. 

Mr. JOHNSON OF GEORGIA. In fact, the numbers requested by the 

Judicial Conference were more than what was actually approved by 

Congress; isn’t that correct? 

Judge PONSOR. Far more. 

Mr. JOHNSON OF GEORGIA. Four to one? 

42 

Judge PONSOR. I would say that it would be that in that neighborhood. There are judgeship authorization bills pending now before the House and the Senate. I believe there is a bill that would 

authorize 51 new district and circuit court positions that is now 

pending before the Senate. We don’t know when there is going to 

be a new judgeship bill. We do know some day there will be a 

judgeship bill; and if there had been a judgeship bill and 100 new 

judgeships had been authorized between 2000 and 2010, as they 

were between 1970 and 2000, and we hadn’t planned for them, we 

would be sitting here and people would be saying: What on earth 

were you thinking by not planning for those additional judges? You 

could look at the figures for the past 30 years, it was plain as day, 

and you did nothing. 

Judge ROBINSON. If I can just illustrate how that affects courtroom sharing ratios in our consideration of what the appropriate 

ratio might be, we have unfilled needs in terms of judgeships. But 

we also have a labor force called senior judges, and that is the first 

population that we looked at in determining what is an appropriate 

sharing ratio. 

To call one senior judge the same kind of person as the next senior judge is not giving them the tribute that they deserve. Our senior judges today span the age ranges of 65 to 102. I happen to know 

the 102-year-old. We are going to celebrate his 103rd birthday next 

month in Wichita, Kansas, and he is still showing up for work 

every day and hearing cases. 

So when we talk about projecting the needs of senior judges, we 

have outliers, and we have had some problems in estimating. But 

we have to understand that senior judges vary from district to district and courthouse to courthouse. Some of them have the same 

caseload as the active district judges. Some of them have full caseloads. Some of them have 50 percent caseloads or 25 percent caseloads. Some of them hear specialized cases. Some of them take the 

whole panoply of cases. So when we talk about what a senior judge 

needs in terms of courtroom space, we have to consider they are 

different people and they have different workloads. 

Nonetheless, we determine that a 2 to 1 sharing ratio would be 

appropriate considering this vast array of individuals that we are 

considering and the outliers, and there really is no average. So I 

say all of that to say that when we talk about projections—again 

Judge Ponsor was illustrating that the projections were based on 

a history of having filled judgeships—and at the same time we are 

looking at courtroom sharing ratios that we hope reflect the fact 

that we have this active labor force in senior judges that are helping us get through our caseloads despite the shortage we have in 

unfilled judgeships. 

Mr. JOHNSON. Because your caseloads are going up in both civil 

and criminal litigation? 

Judge PONSOR. They skyrocketed between 1970 and 2000. We 

had about a tripling of our civil caseloads in that 30-year period. 

We had a 50 percent increase in our criminal law filings during 

that period. During the last decade, we had, in some parts of the 

country, a flattening out of that explosive growth. 

But if you are sitting in the year 2000 and you are looking back 

and trying to plan, that is what you would have seen. It is true and 

43 

I have to concede that some of our filings have begun to flatten out 

in some areas of the country in the past decade. 

Mr. JOHNSON OF GEORGIA. Let me tell you something, just like 

your son would agree with this maxim that I am getting ready to 

lay out, I agree with it also, and that is it is better to have and 

not need than it is to need and not have. 

With that, I will yield the balance of my time. 

Ms. NORTON. Some statistics for the record. Since senior judges 

have been mentioned here, senior judges for the most part, do not 

wish to sit and don’t have to sit in criminal cases and most of them 

choose civil cases, according to our statistics, and only two in 100 

civil cases are tried. 

I want to correct, since Mr. Johnson is a new Member of the 

Committee, I want to correct your notion that there is a room for 

every Subcommittee. There is one Committee room for all six Subcommittees. We all share this one room. All six of us, and we have 

to bid and we do cooperate and bid in order to have a hearing. So 

I may have to postpone a hearing because someone from transit 

says he has something more urgent and that occurs. So I do not 

want to leave the impression that we are trying to put you under 

a standard that we ourselves do not conform to. That is not the 

case. 

I also want you to know that in the last decade, according to the 

statistics reported to the Committee in both civil and criminal 

cases in the Federal courts has been flat. That is 10 years. That 

means it gives us some basis to look forward based on the way statistics are handled in the first place. 

Judge Robinson, you say on page 14 of your testimony that we 

should not adopt the GAO recommendations because they are 

based on a flawed understanding of the judicial process. So let’s see 

what your recommendations for sharing are based on. Has the judiciary ever modeled the Federal judiciary center data with computer 

software of any kind to determine how much courtroom sharing the 

empirical evidence actually supports? 

Judge ROBINSON. Madam Chair, I think there may be a role in 

modeling, use of modeling in making forward projections, particularly as they pertain to a particular courthouse or a particular area 

for which a courthouse is being constructed. But to say that modeling is a tool that should be used to try to develop some kind of 

national average on sharing ratios and without considered and 

great attention paid to what the experience has been, I think is a 

flawed analysis. 

Ms. NORTON. Well, a model, of course, would take into account 

the experience. That is what a model does. A model is not just statistics, Judge Robinson. If you have not modeled—and that is the 

way we do things today— experience is a factor, and a very important factor for a correct model. If you look at how we do economic 

models, nobody just adds up, multiplies and subtracts. 

It is very complicated how to do a model, so complicated that we 

use computer models. If you have not modeled the data to determine how much sharing is possible, how did the Judicial Conference determine that two senior judges can share one courtroom? 

Judge ROBINSON. Well, we based that on a very intense look at 

caseloads, a variety of factors—caseloads, number of judges, age of 

44 

judges, use of the courtrooms. I shouldn’t say we, because it was 

the FJC. In the courthouses and the courtrooms that were studied, 

it was a very complicated process of measuring every minute that 

a courtroom was used and how it was used, to determine what 

these averages might look like. That was then supplemented by a 

questionnaire that was sent to all district judges and magistrate 

judges and senior judges, as well as to a great number of attorneys, 

to get that experiential piece. 

Ms. NORTON. Can you demonstrate that the GAO’s recommendation of three senior judges to one courtroom, which they report is 

supported by their modeling program, is wrong? 

Judge ROBINSON. What I can tell you is that a 2-to-1 ratio for 

senior judges is a dramatic increase from the 1 to 1 ratio traditionally that we have. We agree. 

Ms. NORTON. We agree on that one, so let’s not go back there. 

Judge ROBINSON. But to go beyond that, the GAO study doesn’t 

tell us what their assumptions are. We don’t know what those assumptions are underlying the modeling. All we can do is glean that 

from certain information. 

Ms. NORTON. What you need from the GAO is an opportunity to 

look at their model so you can understand the assumptions underlying their model? 

Judge ROBINSON. I look forward to doing that because what I can 

tell you is there are a number of misstatements in their study that 

do not at all represent, one, the things that they were told during 

their experiential so-called piece of study when they talked to the 

panel judges; and, two, some of the other statements in their report 

are not correct or consistent with what any of us believe or what 

the FJC study would show. I mean, the length of trials, the average length of trials, for example, is a huge component that one 

must consider, and there is no such thing as a one to two day trial. 

Mr. GOLDSTEIN. That number comes from the AOUSC itself, 

ma’am. Second of all—— 

Ms. NORTON. Mr. Goldstein, would you hold for a second. 

Judge Robinson, over and over again, and I think this needs to 

be on the record, you have acted as if he is using one set of statistics and you are using another. Would you clarify that, Mr. Goldstein. The data you used came from where? 

Mr. GOLDSTEIN. The data we used came from the FJC. We are 

using the judiciary’s own data. It is completely modeled. As you 

yourself have said, ma’am, you can model, and the government 

models all the time, extremely complex things: nuclear fallout; we 

model global warming. We model all sorts of things in America 

today. To say we can’t model Federal courtrooms when they are not 

being used half the time is preposterous on its face, I am sorry. 

Judge ROBINSON. If I can respond. My guess is, and again, if I 

can see all of the GAO’s assumptions and how they used this data, 

I think I would be able to answer this question better, so I am 

somewhat hampered here. But I think when they came up with 

that average of 1 to 2 days, they were talking about all court 

events, or at least hearings and trials. But there are lot of hearings 

that take 30 minutes or an hour, but not trials. 

For some purposes you may want to look at those as one set of 

data, but for others purposes it doesn’t make sense to; particularly 

45 

when you are modeling the use of courtrooms for trials, it would 

be flawed to consider all of the other types of hearings that go on 

in courtrooms. 

Ms. NORTON. That is a fair point. Mr. Goldstein, did you consider 

hearings, trials, all manner of things that go on in a courtroom? 

Mr. GOLDSTEIN. The model includes everything that occurs in a 

courtroom, including all unscheduled events and cancelled events 

for a previous week. 

Ms. NORTON. Her point is a trial can take days, and an unscheduled event doesn’t happen. 

Mr. GOLDSTEIN. Absolutely. I agree with that. But the point is 

trials generally take 1 to 2 days. That is the average time. That 

information was provided by the Administrative Office of the U.S. 

Courts. If that is not correct, then we will have to take up that 

issue with the AO. 

Ms. NORTON. So we are dealing with common data there. Mr. 

Peck. 

Mr. PECK. Madam Chair, may I suggest, as you know, we are all 

commenting on a draft GAO report. Normally there is a period in 

which we talk to GAO about the report. We don’t always agree, and 

we submit our agency comments. Sometimes they are in the nature 

of a dissent. Sometimes it is to clarify. I have been involved in computer modeling, and one of the issues is that you do need to know 

what all of the assumptions are. I would suggest that you might 

ask us, I don’t know if we need to come back, but I think we ought 

to sit down and see what the assumptions are, see what alternate 

assumptions the courts might make, and see how the model comes 

out. 

Ms. NORTON. I think that is precisely what Judge Robinson is 

very justifiably saying, that she doesn’t understand the assumptions. And as you say, the normal way, now that the draft report 

is out, is for her to respond, for all of you to respond, and then of 

course, the twain shall meet. And I think from the report will come 

some essential good. I can already see that from the testimony here 

today. 

But I do want to clarify the notion that we are not dealing with 

some kind of mysterious science here. For example, quoting from 

Judge Robinson’s testimony: We would love someone to write an algorithm that really works. 

Let me ask whether you know about the experience of courtroom 

sharing in the Southern District of New York which I think we all 

would agree is one of the busiest district courts in the country. A 

case study in the FJC report shows that they share one active and 

one senior judge. This has been deemed a success in that no trial 

was delayed and no judge lacked for a courtroom when he or she 

needed one because, guess what, they decided they wanted to make 

it work. 

So they weren’t dealing anecdotally with what would happen if 

we had witnesses waiting and they come from across the country, 

they wanted to make it work and that is one senior to one active. 

Existing experience that I would commend both of you and Mr. 

Peck to take a look at if you want to look at a busier court than 

probably most of you see that has made something work of a sharing nature that we are after. We are not laying down a rule of 

46 

sharing here today. We have already gotten your understanding 

that some sharing, particularly given what we understand about 

the economy and about the expectations of the public, is in order. 

The only question is to get together and to figure out how to make 

that work. 

In your testimony, Judge Robinson, on the availability of courtrooms, you say many judges argue that the advantages of certainty, efficiency in cost savings gained, and let me say that again, 

advantages of certainty, efficiency and cost savings gained far outweigh the cost of additional courtrooms. Has the judiciary ever attempted to quantify the cost associated with sharing versus nonsharing? How could you arrive at the notion that it far outweigh? 

It sounds like you are talking about some set of data that has not 

been described here this afternoon. 

Judge ROBINSON. The costs we speak of are not costs to the judiciary, they are costs to the litigants. And we are charged with the 

just and inexpensive and efficient determination and resolution of 

cases, understanding that we serve litigants, American people who 

come into our courtroom. So it is those costs we are trying to strike 

in the balance. 

Ms. NORTON. So are we, Judge Robinson. With all due respect, 

as I tried to make clear, we are not sitting here as a bunch of nonjudicial imbeciles not taking into account the rule of law and the 

importance of the system of law we operate under. I have tried to 

make that clear. You used the word ‘‘costs,’’ and yet you have not 

done any study that shows what the cost would be. 

At least GAO has done a study. You may disagree with the underlying assumption, and you are going to find out what they were. 

But when you come before us and make a statement that is as bald 

as this, many judges you say argue, you don’t say a study finds, 

the advantages of certainty, efficiency and cost savings gained far 

outweigh the cost of additional courtrooms, I have to shake my 

head. 

Judge ROBINSON. Madam Chair, what I will say in response is 

that I think Congress understood that the costs were significant 

when they held us to a standard of completing a civil case within 

3 years because they understood that the average case ought to be 

finished, whether tried or settled, in less than 3 years because of 

the attendant cost to the litigants—not just their emotional or their 

psychological cost, but the real dollars that they pay in terms of attorney time and expenses. So that is what I was speaking to, and 

that is the balance we are trying to strike. 

Ms. NORTON. We have to find that balance, understanding we all 

are looking for that balance and we do not want to polarize this 

search. It is not the judiciary versus the Congress who can’t find 

a balance. We believe that all of us working together can find a 

balance. The tone you hear from us really has to do with 20 years 

of no sharing, no balance, and overspending. We finally have come 

to a point where we have had to throw up our hands; but that does 

not mean that we do not intend to adopt the kind of problem solving that I think will come out of this hearing. 

Mr. Goldstein, your recommendations we understand are based 

on sharing by judge type as, for example, Article III judges sharing 

47 

among themselves and magistrate judges sharing among themselves; is that right? 

Mr. GOLDSTEIN. That is correct. The reason we separate Article 

III judges from magistrate judges is because that is among the parameters that our national academy panel suggested were appropriate. 

Ms. NORTON. Because magistrate judges don’t handle jury trials; 

is that it? 

Mr. GOLDSTEIN. The kind of trials they handle are different. 

They are certainly different durations. They don’t tend to interact 

all that much. These are some of the things we heard, and they felt 

it would be appropriate to model them differently. 

Ms. NORTON. Have you modeled what courtroom sharing might 

be possible if all Article III judges were to share all courtrooms as 

a common resource, the way we do here, under the assumption 

that all courtrooms are built to the same size and with the same 

features so that they are indeed a fungible resource of some kind? 

Mr. GOLDSTEIN. We modeled all district judges and we also modeled senior judges and all magistrate judges separately. We also, 

just to see what it would look like, we did run a model, taking a 

look at if you had all judges on sort of a fungible level where any 

judge could use any courtroom. So yes, we did. 

Ms. NORTON. You have to forgive me if I don’t see that as more 

efficient. 

Mr. GOLDSTEIN. It is more efficient. We were following parameters that we felt were useful because they were developed through 

the panel process that we went through when we brought together 

judicial experts. But you are absolutely right, it is more efficient. 

Judge PONSOR. Let me say that magistrate judges do try jury 

trials. They don’t try criminal felony trials, but magistrate judges 

do try lengthy civil jury trials. 

Ms. NORTON. I was trying to take away all the differences and 

put all Article III judges in the same category. If you did all of 

that, why won’t there just be a pool for centralized sharing? What 

would be wrong with that? 

Judge ROBINSON. That is the next thing that we are going to look 

at because we think that there are economies of scale that can be 

achieved. But understand that a number of courthouses are small 

to medium. Whether we can achieve economies of scale is questionable when you are talking about only two active district judges, or 

one. I sit in a division, I am the only active district judge, and I 

have two senior judges along with me who work full-time. So there 

are those differences. 

But magistrate judges also have a much more immediate need 

typically for a courtroom because they don’t know when someone 

is going to be arrested. People are arrested and they are brought 

in for that initial appearance in short measure. So they need ready 

availability, but they do not need a 12-box jury. 

And bankruptcy judges, it is a different study. And I have been 

a bankruptcy judge. I have been in the trenches, if you will forgive 

me. It is very different. And they are in a period where they are 

experiencing a heavy caseload and a great number of filings. They 

are in the courtroom a lot is what I can tell you anecdotally. So 

I think there is a value by measuring by judge type because our 

48 

work tends to differ. Although I will say this, looking at case management, case management is really a function of a district-by-district or courthouse-by-courthouse thing. There is no uniform national standard and that is because we are all trying to be as efficient as possible. 

There are districts where magistrate judges, except for criminal 

jury trials, are doing all of what Article III judges are doing. There 

are other systems or places where magistrate judges are not doing 

very many civil trials. It is all a matter of how can we effectively 

organize our work pool, our labor force, in a particular courthouse 

to handle the caseload that we are dealt. 

Ms. NORTON. The differences you describe are real. But aren’t 

there, in the interest of cost savings and efficiency, aren’t there 

some standards that you think would work across the board for, for 

example, Article III judges, magistrate judges? No one is trying to 

custom-make courthouses the way we have before. If you don’t custom-make them, then you have got to have some standard that everybody agrees to as a minimal standard. Maybe you rise above it 

on some occasion, otherwise we are back to where we were, custommade courthouses, and why have we bothered in all of this. 

Judge Ponsor, how does the judiciary select its courthouse 

projects for your 5-year plan? 

Judge PONSOR. We have a number of steps that we go through. 

We start with a feasibility study when it is requested, and we look 

at the courthouse and we project forward as to whether we need 

that courthouse. We have had, since about 2007, a new process 

called asset management planning, which is an extraordinarily detailed very, very thorough analysis of all of our courthouse inventory that allows us to develop yardsticks to measure the urgency 

of the need of particular courthouses. 

And interestingly, as a result of that AMP process, which we are 

about a third of the way through now, we have actually eliminated 

a fairly large number of courthouses that were lining up on our 5- 

year plan for new courthouses. In other words, we have gone to 

these courthouses and said, We don’t think that you need a new 

courthouse. We think you can deal with a renovation. 

So the fact that we are able to take a clear picture of what the 

courthouse actually needs and what it looks like, and to some extent sometimes, and I will be honest with you, pry the information 

out of the courts to get the information about what they have got 

there, how many people and courtrooms they have, and the data 

that we need to really plan, it has allowed us to begin to sequence 

the courts and deal with the courthouses that have the very greatest need. 

Ms. NORTON. In other words, number one will be the courthouse 

that is most decrepit, shall we say, in greatest need and you have 

developed a system for deciding which courthouses get precedence 

for construction? 

Judge PONSOR. We have four criteria which are scored in the 

AMP process. First of all we look at the court systems. Is the air 

conditioning working? Are the windows leaking? We had a judge in 

North Carolina who was in the process of sentencing a defendant 

when a piece of the ceiling broke out and hit the defendant on the 

49 

head. That is really adding insult to injury. So how is the physical 

plant holding up? 

Second, do we have enough space for all of the judges in the 

courthouse? 

So you have systems, you have space, and then we used to make 

this our primary consideration, and in fact, we have diminished it 

by a few points, and that is security. We look at how the judges, 

the public, the litigants, the lawyers are at risk when they come 

into the courthouse. What we have found is, if we make that qualification too far up on the scale, frankly, everybody is worried about 

security. There is hardly a judge anywhere who is not going to say 

we people in Chicago, we people in Puerto Rico, we people in 

Miami, we people in San Antonio, we people in Los Angeles, we 

have the worst security. And Detroit. We should get a new courthouse right away because somebody is going to get hurt. That is 

the hardest. 

It is not exactly a threat, but it is the hardest thing to hear: 

‘‘Somebody is going to get hurt and it is going to be on your head 

if you don’t give us a new courthouse’’. So we have had to step back 

from the security issue. It is now 25 percent. We have a 30–30-25 

percent to try to make that just a little bit less and look at how 

is the court functioning, is it big enough, and secure enough? Then 

we look at the design guide and try to figure out whether we have 

problems with courtrooms that are tiny little courtrooms and are 

way below the design guide, way below what anyone in this room 

would want a judge to have to cope with. And we put that all together and it allows us to score all of the various courthouses and 

determine where in the sequence they should come. 

It is a refinement that has had a lot of very intelligent, hardworking and resourceful people putting a lot of time in on it, and 

which we continue to be committed to, and which will allow us, I 

think, to do our job a lot better. 

Frankly, it used to be back in the old days, and you probably 

know this better than I do, the district that could make the biggest 

noise, the district that had the biggest clout in some arena or other 

was the squeaky wheel that got the oil. That is what we are trying 

to get away from. We are trying to adopt an objective measure that 

will allow us to say to certain courts, I am sorry, you are just not 

in line right now. There are too many courthouses ahead of you. 

And believe me, in my role, I get calls from other judges. They 

accuse me of being a toady for the AO and not getting out and 

fighting for their courthouse. ‘‘What is wrong with you? It is your 

job to deliver the goods’’. We have to say to them: ‘‘I am sorry, let 

me compare your courthouse to the other courthouses that are 

ahead in line’’. 

So we are working hard to develop an objective yardstick that 

will allow us to prioritize these courthouses and put them in order. 

Ms. NORTON. Judge Ponsor, while we may have differences on 

the number of square feet that we end up with or we are sharing, 

it looks like you have a fairly rational model for at least deciding 

which courthouse goes first and the like. But the Ranking Member 

couldn’t resist saying, I wonder if, and I wonder right alongside 

him, if L.A. went through this rather rational process you are describing. 

50 

Judge PONSOR. I don’t know if it was part of our literal AMP 

process because it was selected prior to the time that process was 

really in gear. I can be corrected on that. 

Ms. NORTON. I would bet that it would fit in terms of need. 

Judge PONSOR. Having been there, I think physical plant, and I 

have to look into this issue that Congressman Diaz-Balart mentioned about the number of judges going down and fitting them all 

in the courthouse. You are a step ahead of me. 

Ms. NORTON. That is over time; it has been so long. What he is 

saying is now the number of judges have been reduced. 

Judge PONSOR. But its score as a physical facility has got to be 

really low, and certainly the security worries me a lot there. They 

have some of the toughest cases in the country. They have Mexican 

drug cartels cases with 30 and 40 defendants. I went into their 

high security courtroom. They have benches that will cover up the 

defendant’s feet because they are shackled while they are in the 

courtroom. And I have to say, I almost never shackle defendants 

in a courtroom. But sometimes they have to do that during trials. 

They have got some really serious situations there. We are not 

going to be talking about a billion dollars, but we have to come up 

with some kind of solution for Los Angeles. 

Ms. NORTON. We note that there is a funding for the Lancaster 

courthouse. Why is that not in the 5-year plan? 

Judge PONSOR. I believe that Lancaster was going to be a lease 

construct at one point. We had this tool, which the OMB has now 

told us they do not want us to use any more, where we could 

ocasionally do a lease construct project, and I think Lancaster was 

going to be a lease construct. 

Yes, it was not going to be a federally-owned building. It was 

going to be built and owned by a private entity and leased to the 

government. It was a tool that we could occasionally use in situations where you had a very small courthouse and very unique situations. OMB came to us, I think, a year ago and said we are not 

going to allow that any more, no more lease constructs, and that 

is the end of lease constructs. So we had just a little exception, 

kind of rotating out there where we would occasionally do lease 

constructs, and we got caught in the middle by a change in policy 

where OMB said you can’t do lease constructs any more. 

So, we said if you say we can’t do lease constructs, we won’t do 

lease constructs. We are going to do all federally-owned buildings. 

But Lancaster was kind of hanging out there. I am not quite sure 

how far I should go with the Lancaster courthouse, but I guess I 

would have to say as tactfully as I can, that was a courthouse that 

was not driven by our AMP process but was prioritized as a result 

of external pressures, which I hope we will not be subject to much 

longer in developing our courthouse program. 

Ms. NORTON. I am glad OMB got there before we did. This was 

below the prospectus level, and I understand there have been two 

built a year. 

Judge PONSOR. Very few. We had one in Yuma which we were 

hoping to build, and that was a lease construct. 

Mr. PECK. And that is now federally constructed. 

Ms. NORTON. Imagine leasing a courthouse; suppose they decided 

to put you all out; my, my, my. 

51 

I have another question for you, Judge Ponsor. Thirteen courthouse projects and the most recent 5-year courthouse plan have an 

aggregate of 33 new judgeships not as yet authorized. Do you think 

it is reasonable for the judiciary to expect the Congress to authorize this many judgeships for the 13 locations when the number constitutes roughly the same number of judgeships that the Congress 

has authorized during the last 20 years for the entire country, for 

all 94 districts and some 550 locations? 

Judge PONSOR. I was not aware that the number was that high. 

I have before me my own notes on all of the projects in our 5-year 

plan. I have a proposed new magistrate judge and a new bankruptcy judge in Charlotte—that is two, three. One new district 

court judge, a proposed new magistrate judge, and a proposed new 

bankruptcy judge—another three in Greenbelt. In Greenville, 

South Carolina, we have one new district court judge we are planning for who has already been approved by the Conference. In Harrisburg, we have one new magistrate judge already approved and 

one bankruptcy judge proposed. 

They go on. But I didn’t think the numbers went up that high. 

In Mobile we have one proposed new judge and one bankruptcy 

and one circuit judge. We have two in Nashville, one district and 

one magistrate. We have one in Norfolk, Virginia, one bankruptcy 

judge. I am not doing the arithmetic as I am talking, but I agree 

with you that there are a number of judges that are planned for 

in our 5-year plan that have not yet been approved by the conference but which are statistically—— 

Ms. NORTON. How could you plan for more judges than have been 

authorized by the Congress over 20 years for the entire country? 

That is concerning. The figures we have, and we have them here, 

32 new, 19 senior, adding up to 52. So I wonder how you ever got 

to such an overestimation of judgeships given the fact that 

amounts to the number that Congress has authorized for the entire 

country for a generation. 

Judge PONSOR. First of all, if that is how high the numbers are, 

they are higher than I have calculated, and I have to agree with 

you, that number is too high. And we are certainly willing to work 

with you in collaboration to make sure that as these courthouses 

are authorized, that we aren’t too high. 

There are people who say something else to me, and this maybe 

is a topic upon which reasonable people may differ. I have judges 

who are moving into new courthouses or are in the planning stages 

of their courthouses who say to me: How can you insist that we 

enter a courthouse that is full the day we move in? 

Ms. NORTON. How often does that happen? 

Judge PONSOR. At least half a dozen times that I can think of. 

Ms. NORTON. If that is the case, how do these poor judges make 

due? I bet they share courtrooms, Judge Ponsor. 

Judge PONSOR. Well, certainly under our policy, senior judges 

and magistrate judges will be sharing courtrooms. Let me say 

about courtroom sharing, I have no objection in principle to the notion of appropriate courtroom sharing, even by some district court 

judges. It is hard. I know it is going to sound whiny for me to give 

you anecdotal evidence about just how tough it is, but I think what 

really bothered me about Mr. Goldstein’s suggestion was a cookie 

52 

cutter 3-for-2 solution across the country, which would be in certain 

courts—and I don’t want to sound melodramatic—but it would be 

something close to a catastrophe to make district court judges work 

under those circumstances. 

I agree in certain circumstances maybe—— 

Ms. NORTON. Why would it be a catastrophe? I express no opinion, but somebody who tells me it would be a catastrophe, you must 

be basing that on something, and I would like to know what. 

Judge PONSOR. I will tell you what it is based on. And I am 

afraid I just have to break down to anecdote and 26 years of experience. Let me just tell you where I am right now. 

I started a 5-day nonjury race-discrimination case involving a 

man whose liquor license was turned down. I got 5 days into it. I 

had to suspend because I am now in the fourth day on a hearing 

of a motion to suppress on a criminal case that is going to trial 

later in June. It happens to be three young white kids who are 

charged with burning down an African American church in Springfield the day after President Obama was elected. It is a case that 

has gotten national attention. It is very high profile. 

So I have got one civil case I have stopped, a motion to suppress 

that I have tucked in there. I have had to bump a civil trial involving a local guy named Berkshire Blanket from Palmer, Massachusetts, who has a little blanket company, and he is suing his IT 

man. That case had to be postponed after they were all set to go 

so that I could make room for my hearing on—— 

Ms. NORTON. In your courtroom? 

Judge PONSOR. I am the only frog in the pond. If I were trying 

to share that courtroom, if all three judges were trying to—— 

Ms. NORTON. Just a moment. There wasn’t another courtroom in 

the entire courthouse, sir? 

Judge PONSOR. In my courthouse? 

Ms. NORTON. No. You have a courthouse. 

Judge PONSOR. Yes. 

Ms. NORTON. You have a courtroom. 

Judge PONSOR. I have one courtroom. 

Ms. NORTON. Suppose you had access to other courtrooms. 

Judge PONSOR. If there are three district court judges—I am 

doing a bad job of expressing this, and I am sorry. I will just step 

back and see if I can make it clear. 

If you have three judges trying to coordinate access to two courtrooms with that kind of complicated docket, it is an impenetrable—— 

Ms. NORTON. I would agree with you. That is why I want Mr. 

Goldstein to share with me his modeling for centralized sharing. I 

think—and I think there has been some agreement here. I don’t 

know how these two judges get together with three cases. Who in 

the world wants to put you through that? If there is centralized 

sharing—there might be problems with your time, Judge Ponsor, 

and I can understand that, but it seems to me it would be far less 

problems with courtroom assignments than if three judges have to 

get together and have a little conference every time they have to 

decide which of them gets to use a courtroom. That seems, to me, 

to build inefficiency into inefficiency. 

53 

So as long as we are doing it, why don’t we just say, look, we 

are one big family of Article III judges. None of us is better than 

the rest. And when one brother judge or one sister judge needs a 

courtroom, she ought to have it, especially if it is not being used. 

There is no ownership of something within a courthouse that belongs to the people of the United States. A judge cannot be assigned ownership of a courtroom. 

Judge PONSOR. I couldn’t agree with you more. 

Judge ROBINSON. Madam Chairman, I think what Judge Ponsor 

was illustrating—and it is my experience, too, because I come from 

a small courthouse in a small district, that I am the only active district judge in my division. So if I am sharing my courtroom with 

a senior judge or a magistrate judge, and I have a schedule like 

Judge Ponsor has—and I have had that very experience—and the 

senior judge is in a trial session as well and also has strong needs 

and considerations to have his case or cases go to trial, now we 

have a problem. And there have been times that I have moved a 

case primarily because it was high-profile, and there were going to 

be a lot of people involved, and I have a courtroom that is small 

and can’t accommodate a great number of people. I have moved 

that case 60 miles, but with attendant costs and more delays. 

And I say all that to say that we do share, and we do accommodate, and we are collegial, and we do step up and help each other. 

But sometimes—for example, if I can give you one more anecdotal 

piece of evidence, I twice have tried a 3-month trial in another division 60 miles away, and I needed a courtroom for 3 months. It was 

a 3-month criminal jury trial. It just so happened both of the times 

that I was there, all of the other judges in that division had heavy 

trials, back-to-back criminal or civil, and we were vying for limited 

court space, and it was difficult. And to try to choose between the 

small business owner who is being costed out by attorney fees and 

the criminal defendant that has speedy trial rights is a difficult 

thing. And when I spoke of the algorithm, that is what I was talking about. It is those sorts of real-world difficulties. And I am not 

suggesting it is like this all the time. 

Ms. NORTON. And when I spoke of the experience—in response 

to your algorithm concern, when I spoke of the experience of the 

Southern District of New York and cited to you how they made it 

work, I was speaking from real-life experience, too, not anecdotes 

about having to move one trial, but about one of the busiest district 

courts in the United States. And the reason it works is because 

they made it work. 

You have indicated you want to make it work. Frankly, that is 

all we need to hear. We understand there are extraordinary differences, even hardships. The greatest hardship of all at the moment is on the taxpayers of the United States. And, frankly, that 

is the hardship that most concerns us at the moment. We will not 

be able to go before the Congress to get additional money for courthouses if this is all we have to show. 

Mr. Peck. 

Mr. PECK. You know, I think I have now been a party to these 

conversations with a break in service, obviously, for 14 years, and 

we have had a lot of conversations over courtroom sharing. 

54 

One, I want to say that the judiciary presents a different face to 

GSA than they have before, because I want to make clear we have 

not abdicated our responsibility to build appropriate courthouses 

within the budget, and as much as we can, we have had a lot of 

conversations with the judiciary. 

And I want to make a suggestion, because I think we are getting 

to an important point. The judiciary under the leadership of Judge 

Bataillon and now Judge Ponsor and the space committee have, I 

think, been much more realistic about prioritizing courthouses in 

the first place. 

Second, I think they are much more open to looking at modern 

management and how we might do things differently. And so the 

suggestion I would make is that we look at actual data. I think 

Congressman Diaz-Balart suggested we see if we can make this 

work. Why don’t we look at real data that we have on caseloads 

in different courthouses—I suspect we are going to find different 

answers in different places, and with different sizes of courthouses, 

and with different mixes of magistrate and bankruptcy and district 

judges—and then come up with some real data based on real facts 

that will tell us how and whether this could work, and what obstacles we would face if we went to a different kind of a policy. 

I think it would be instructive. I suspect that we will validate 

some of the concerns that the Committee has typically had, and I 

think we will validate some of the concerns that the judges have 

had about the hardships. But I think we could come up with a research model and run data fairly quickly if we all got together and 

did it. 

Ms. NORTON. Well, I am certainly with you, Mr. Peck, that the 

judiciary is far more open to change. We have not heard the kind 

of stonewalling about a kind of virtual Article III right to build 

courthouses here. We have heard none of that from our witnesses 

today. The witnesses are open to sharing. 

I must say that I am dubious about your last suggestion. We are 

not going to customize courthouses based on docket, which changes 

from time to time. 

And if you want some real-life experience, Mr. Peck, I want you 

to study what the Southern District has done. Look at—if you want 

to talk about somebody who has spent some of her—native Washingtonian, but spent some of the best years of her life in New York 

City, you want to talk about a courthouse that has complicated 

trials, that has a horrendous caseload, take that as a case in point 

and see if you can extrapolate from that. Because I can tell you 

right now, we are not going to be able to customize courthouses to 

dockets. There is no way to do that. 

Now, if—when you read Mr.—have a chance to study the assumptions behind what Mr. Goldstein has done, if you have differences with it, it is there that you ought to start to make 

changes. But I find it amazing to think about dockets as a way of 

doing this. We have got to—if we are going to be efficient, there 

are some models that have got to take into account most of what 

we are talking about. And if I may say so, this is not the most complicated model that we deal with in the Congress. 

So where you have differences, if you can, if you find a caseload 

isn’t built in enough, even given the Southern District model where 

55 

they have had no delays, where they have had no backup, if you 

are not satisfied with that, fine. If you are not satisfied with Mr. 

Goldstein’s model, fine. But I tell you one thing, the courts have 

come up with no model, nor has GSA. So let us at least compare 

apples to apples, models to models. 

I am going to ask Mr. Diaz-Balart if he would finish. 

Mr. DIAZ-BALART. I will be brief. 

Let me also then, since this will be my final one as well, let me 

thank all of you. And I agree, we have not heard the stonewalling 

we have heard in the past. So it has been very refreshing, and I 

want to thank all of you for being here today. I think this has been 

very helpful. 

Mr. Peck, your last recommendation, you know, Mr. Shuster 

pretty much did that 4 years ago. I thought that is what we did 

4 years ago when he said we are not going to fund anything new 

until we have a study. We have a study. So I thought that is what 

already had been done. And I guess now it is your recommendation 

to do it again because we don’t like the result of it or what? I 

thought that had already been done. 

Mr. PECK. No, sir. I am much more on the—what I was trying 

to say was that we can take real-life data. We are talking about 

trying to come up with a model. That is what GAO is trying to do. 

And I was saying there is real-life data. We don’t quite know what 

assumptions GAO used. We can use data in various courthouses 

and see what works, have it worked out with the courts on what 

they think is usable and doable, and come back to you with a suggestion on what works. I am not talking about customizing for 

every courthouse. I am talking about coming up with a model. 

We need a policy. We need in GSA to have an agreement, because, as you can tell here, we catch the spears when there is disagreement over the policies. And we are tough, we can take it, but 

we would like everyone to have an agreed-upon policy as well. 

Mr. DIAZ-BALART. I understand that. But I thought that is what 

was asked for 4 years ago; the FJAC then came up with the numbers, and then GAO used those numbers to come up with this. But 

I think it is already there, is my understanding. 

Mr. PECK. Like I said, we don’t know how GAO took those numbers and turned them into their model. 

Mr. DIAZ-BALART. FJAC also did their part, is my understanding. 

Mr. PECK. Thats right, they have. But I don’t think what we ever 

came up with was the final analysis on what courtroom sharing 

could look like if you are talking about sharing beyond what the 

courts already have done. 

Mr. DIAZ-BALART. Well, you have one model at least now. And I 

think what the Chairwoman is saying is we haven’t gotten anything other than the GAO—thank God for them. But—all right. I 

just want to make sure that we are on the same page here. 

Look, a couple issues. We have heard no stonewalling, and I 

think it has been refreshing. However, there are a couple things 

that make us pause. We keep going back to the L.A. model. That 

is like a bad penny that keeps turning up. And I understand there 

is obviously a lot of issues. L.A. is a huge area with huge issues. 

My understanding is that when there are issues of security, that 

there is I guess two now, they use the one that is newer that has, 

56 

my understanding, some very good security measures. And this 

Committee has never been shown any compelling reason why anything above that needs to be done. 

I think it would be a step in the right direction to show that 

things are different, that we all—we all have learned our lessons, 

our collective lessons, that that one, frankly, just is looked at, and 

that reality hit; and that look at the security steps that have been 

taken with the newer of the two courthouses that are down there, 

and that that one just finally gets real. Number one. 

Number two is it is not the only one. You know, there is the 

issue of, as was mentioned, the one in Pennsylvania. I guess now 

there is one in Redding. Now there is another small courthouse 

that was going to be put together and built in Pennsylvania, in, I 

guess, Lancaster, Pennsylvania. 

You know, those things have to start—if we are serious about 

changing the way we do business, which we all have to do, you 

know, things like that have to, frankly, go away. They have to get 

real. They have to start—we need to start to see some serious 

changes in the way we have been doing business. 

Judge PONSOR. Lancaster is a valid criticism. 

Mr. DIAZ-BALART. Well, I think L.A.—by the way, I am sure 

there are some good ones and some bad ones. That is just life. I 

understand that. The reality is those that we know are bad—bad 

is not the right term. I mentioned to you about what words mean. 

I shouldn’t say ‘‘bad.’’ Ones that clearly are not the best way to 

spend taxpayers’ money, those have to be corrected. They have to 

go away. They have to drop off the lists. And they shouldn’t be 

around anymore. And I think that will show a lot of—that we are 

moving in the right direction. 

So I want to thank you all for your testimony. It has been very 

helpful. I want to thank you all for being very open and allowing 

us to do the same thing, and appreciate your service. Thank you. 

Ms. NORTON. Let me say we do have one model. I suggest everybody look at that model and try to see if there are changes should 

be made in that model, because I want to say this: We are not 

going through a whole set of hearings on different models. We are 

going to change this program by law. 

So the kind of collaboration that would have everyone agree 

would be helpful to us, and if we don’t get it, we are just going 

ahead anyway, because we have got to show in the Congress that 

we are taking care of this problem. This is one of the major construction projects or divisions of the GSA. 

I have to ask a final question of Mr. Peck. Given the extent to 

which judiciary has been given the last word often on courthouses, 

is the GSA fully willing and able to again take charge of a major 

Federal construction program as mandated by law? 

Mr. PECK. I would—first, I would not say that the judiciary has 

had the last word. But I think that we prove every day with the 

projects that we manage, the buildings we manage, the leases that 

we negotiate that we are a supremely competent public real estate 

agency, and that we certainly welcome the opportunity to work on 

the courthouses, and we welcome the opportunity with the Congress to put some bright policy parameters around this program 

and manage to them. We would welcome that. Yes, ma’am. 

57 

Ms. NORTON. And I do believe that the ball really is in our court. 

I think we have put GSA to a disadvantage, first of all, even within 

the executive branch, of dealing with peer agencies. Now, when 

they deal with another branch of government through administrations of all kinds, we have found GSA to be at a disadvantage. And 

we think the only way to correct that advantage, given the fact 

that this part of what the courts do has nothing to do with cases 

and controversies and has everything to do with what Mr. Peck 

just said—Mr. Peck and the GSA are experts in construction. They 

know how to do it. Judges don’t know how to do it, aren’t paid to 

know how to do it, and deal in the case in controversy business. 

They are absolutely indispensable advisers to GSA. 

This Committee will hold GSA responsible for the final product. 

I want that understood. I think Mr. Peck is very experienced, 

knows how to do it. I believe that we have short-changed him and 

the GSA in not putting more teeth in the law, because we believe 

that judges will follow the law. And if the law makes clear that 

GSA, and only GSA, is accountable when it comes to construction, 

with the advice of the judiciary in language that cannot be gainsaid, if we make it clear, then I think we will straighten out part 

of this problem. 

And we do intend to do this. We intend to change the law. And 

we believe that we put GSA at a disadvantage if we don’t. And 

while we have had two very reasonable judges before us, they know 

well that others of their colleagues often see themselves as in 

charge of this process. And we think the only way to disabuse them 

is by something all judges respect, by law, and that is the change 

we intend to make. 

Your testimony, the testimony of all four of you, has been extremely helpful to us. I hope you don’t mistake, judges won’t certainly, the kind of cross examination, if I may say so, that we do 

here. That is how we are trained to extract from our witnesses the 

best testimony that will get—the deeper the cross examination, the 

better the answer, because the witness will defend her or his view. 

And then it will make us understand whether we have—the question posed, in fact, reflects or does not reflect what the facts are. 

So we have found you to be very good witnesses of great help to 

this committee, and you have given us a head start on what our 

part of the problem will be. We are especially—what our part of the 

mission is. And we are especially encouraged by the willingness of 

all four witnesses to work together to advise GSA and to advise 

this committee on how to proceed. 

Thank you very much. And this hearing is adjourned. 

[Whereupon, at 1:25 p.m., the Subcommittee was adjourned.] 

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