[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



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

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON COURTS AND
                           COMPETITION POLICY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 29, 2010

                               __________

                           Serial No. 111-153

                               __________

         Printed for the use of the Committee on the Judiciary



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


                              __________


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

             Subcommittee on Courts and Competition Policy

           HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman

JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia               JASON CHAFFETZ, Utah
CHARLES A. GONZALEZ, Texas           F. JAMES SENSENBRENNER, Jr., 
SHEILA JACKSON LEE, Texas            Wisconsin
MELVIN L. WATT, North Carolina       BOB GOODLATTE, Virginia
MIKE QUIGLEY, Illinois               DARRELL ISSA, California
DANIEL MAFFEI, New York              GREGG HARPER, Mississippi
JARED POLIS, Colorado

                    Christal Sheppard, Chief Counsel

                    Blaine Merritt, Minority Counsel
                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 29, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Chairman, Subcommittee 
  on Courts and Competition Policy...............................     1
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Ranking Member, Subcommittee on 
  Courts and Competition Policy..................................     6

                               WITNESSES

The Honorable Jim Cooper, a Representative in Congress from the 
  State of Tennessee
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Mr. Mark L. Goldstein, Director, Physical Infrastructure, U.S. 
  Government Accountability Office, Washington, DC
  Oral Testimony.................................................    12
  Prepared Statement.............................................    15
The Honorable Michael A. Ponsor, U.S. District Judge, District of 
  Massachusetts, and Chairman of the Judicial Conference's 
  Committee on Space and Facilities, Springfield, MA
  Oral Testimony.................................................    29
  Prepared Statement.............................................    33
Mr. Robert A. Peck, Commissioner of Public Buildings, U.S. 
  General Services Administration, Washington, DC
  Oral Testimony.................................................    44
  Prepared Statement.............................................    46
The Honorable Robert James Conrad, Jr., Chief U.S. District 
  Judge, Western District of North Carolina, Charlotte, NC
  Oral Testimony.................................................    49
  Prepared Statement.............................................    54
Ms. Judith Resnik, Arthur Liman Professor of Law, Yale Law 
  School, New Haven, CT
  Oral Testimony.................................................    67
  Prepared Statement.............................................    70

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Letter to the Honorable Barack Obama, President of the United 
  States of America, from the Honorable Henry C. ``Hank'' 
  Johnson, Jr., a Representative in Congress from the State of 
  Georgia, and Chairman, Subcommittee on Courts and Competition 
  Policy.........................................................     3

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of John F. Clark, Director, United States 
  Marshals Service, Department of Justice........................   104
Prepared Statement of Judge John M. Roll, Chief District Judge, 
  District of Arizona............................................   109


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

                              ----------                              


                     WEDNESDAY, SEPTEMBER 29, 2010

              House of Representatives,    
                 Subcommittee on Courts and
                                 Competition Policy
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 4:11 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Henry 
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Johnson, Gonzalez, Coble and 
Goodlatte.
    Staff present: (Majority) Christal Sheppard, Subcommittee 
Chief Counsel; Elizabeth Stein, Counsel; Rosalind Jackson, 
Professional Staff Member; (Minority) Blaine Merritt, Counsel; 
and John Mautz, Counsel.
    Mr. Johnson. This hearing will now come to order. Without 
objection, the Chair is authorized to declare a recess of the 
hearing.
    In the--the integrity of our judicial system relies on the 
promise of access to justice for all Americans. A central tenet 
of that promise is that the public must have trust that 
whatever they need or whenever they need access to the 
judiciary, it will be available.
    A recent GAO report--and I apologize for the disturbance 
behind me. I am a soft talker, and--yes, I got some 
competition. [Laughter.]
    We are now--we have got the proceedings going on in the 
House, which, of course, are very important, but we have got 
some important concerns today about justice. There we go. 
Somebody took me off the air. I guess you get what you ask for.
    All right. The integrity of our judicial system relies on 
the promise of access to justice for all Americans. A central 
tenet of that promise is that the public must have trust that 
whenever they need access to the judiciary, it will be 
available.
    A recent GAO report on courthouse space found over 3.56 
million square feet of excess space in recent courthouse 
construction, which has led some to conclude that less funding 
should be allocated to courthouses. Others have argued that the 
GAO methodology and resulting recommendations are seriously 
flawed.
    However, today's hearing is not about the GAO report 
itself, a matter that I have discussed at length in other 
forums. Instead, this hearing is about the threat to access to 
justice and the risk that the report will be used as 
justification to cut funding for critical pending courthouse 
construction, limit security for our judiciary, litigants, and 
the visiting public, or mandate courtroom sharing without 
consideration of the factors that go into how courthouses are 
used to deliver justice.
    Access to justice is an issue that has concerned me for 
many years, through bills that I have introduced, including the 
Arbitration Fairness Act, and bills I have co-sponsored, such 
as the Open Access to Courts Act. I have consistently worked to 
open the courthouse doors. Congress--or to keep those doors 
open.
    Congress has a vital role to play in the process, and I 
look forward to working with all the Members of this Committee 
to address increasing access to our courts. The GAO report 
findings and the resulting calls to cut courthouse funding 
based on the report threaten the very nature of our 
constitutionally created three coequal branches of government.
    I emphasize that the three branches are intended to be 
coequal separate branches. This balance of power is disrupted 
when the legislative branch intrudes on how the judicial branch 
conducts its business, such as by dictating how much courtroom 
sharing there should be or how to calculate the number of 
judges needed to meet caseload demands.
    My concern on this matter is well established. Yesterday, I 
sent a letter to President Obama asking him to continue funding 
courthouse construction projects without regard to the flawed 
GAO report findings. I am entering a copy of this letter into 
the record. I urge the Judiciary Committee to also strongly 
weigh in at this juncture.
    [The information referred to follows:]
Letter to the Honorable Barack Obama, President of the United States of 
     America, from the Honorable Henry C. ``Hank'' Johnson, Jr., a 
  Representative in Congress from the State of Georgia, and Chairman, 
             Subcommittee on Courts and Competition Policy

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                               __________

    While the GAO report applies a strict formulaic calculation 
to courthouse space, the Judicial Conference and Members of 
this Committee know that the use of courthouses is not merely 
about numbers. As a former magistrate judge, I am very 
cognizant of the many other factors that go into how courthouse 
space functions, including the security needs and impact on the 
delivery of justice that no numeric calculation can adequately 
capture.
    In light of the concerns raised by the GAO report that I 
have just detailed, I want to announce today that I am planning 
to visit several courthouses next month in order to access or 
assess for myself the state of courthouses that the judiciary 
believes to be in desperate need of funding, as well as a 
courthouse that has been recently built according to the 
judiciary's stated needs.
    I understand that Representative Eleanor Holmes Norton is 
very interested in courthouse funding, as well, and plan to 
work closely with her on this issue. I invite Representative 
Eleanor Holmes Norton and my colleagues on this Subcommittee 
and the Transportation and Infrastructure Subcommittee on 
Economic Development, Public Buildings, and Emergency 
Management to join me in this trip so we can fully appreciate 
and have a fruitful discussion on the needs of the judiciary, 
as well as why I believe the Judicial Conference so badly needs 
funding for continued courthouse construction.
    I now recognize my colleague, Mr. Coble, the distinguished 
Ranking Member of this Subcommittee, for his opening remarks. 
Thank you.
    Mr. Coble. Thank you, Mr. Chairman. Appreciate you calling 
this hearing today. Good to have our colleague from Tennessee 
with us, as well.
    During my inaugural run for Congress, Mr. Chairman, I held 
a press conference to announce my intentions. A reporter in 
attendance asked why I was doing this. It was a straightforward 
question, so I chose a straightforward answer. I said I wanted 
to bring a sharp pencil to the Congress. And what I meant was, 
I intended to pursue a policy, agenda premised on less spending 
and lower taxes.
    Like it or not, that is still my philosophy. Some times it 
has worked out as intended; some times it did not.
    But today's hearing, Mr. Chairman, compels us to examine 
the role of government in our lives and how much we are willing 
to pay for the services it provides. Our focus is on the 
judiciary, a critical component of our government. Without the 
rule of law and an independent judiciary to administer it, the 
biggest and meanest just get their way, but that is not the 
American way.
    Because we are a civil society that values settling 
differences peaceably, providing adequate resources for the 
Federal courts should represent a policy priority for Congress 
and the American people, as well. But no one, Mr. Chairman, 
gets the proverbial blank check, and this is where we may need 
to break out the sharp pencils.
    The Government Accountability Office released a study about 
4 months ago that suggests that our national courthouse 
construction program is fraught with waste. GAO alleges that 
the General Services Administration has not exercised 
appropriate oversight in administering the program for much of 
the past 10 years.
    GAO furthermore believes the Federal judiciary has 
contributed to these problems in two key respects: first, by 
not maintaining case law--caseload protection records, records 
that help in measuring future workloads, and the need for new 
judges; and, second, by failing to adopt more expansive 
courtroom sharing policies.
    The results, if accurate, are alarmingly stark. GAO asserts 
that we have overbuilt Federal courthouses by more than 3 
million square feet. This equates to $835 million in 
unnecessary space, with an additional cost of 51 million to 
rent, operate and maintain the space.
    The GAO study has generated buzz, to put it mildly, but its 
methodologies and findings have been questioned by others, 
including some of the witnesses who will testify today.
    To illustrate, the administrative office of the U.S. courts 
correctly notes, in my opinion, that is difficult to predict 
the judiciary's courthouse needs when the size of the judiciary 
is a function of congressional action or inaction. How accurate 
can such predictions be if Congress creates new judgeships 
piecemeal as it has for the past, I would say, 2 decades?
    I am especially taken with the judiciary's robust defense 
of its role in our civic life. They emphasize that it is 
inappropriate for GAO to judge them by applying new standards, 
such as courthouse-sharing strategies after the fact. The 
judiciary also maintained that the whole point of our courts is 
to dispense justice as expeditiously and as fairly as possible. 
How does a one-size-fits-all courtroom-sharing plan further 
justice? How does it promote the quick resolution of legal 
disputes? Are the Federal judicial events knowable and, 
therefore, predictable or not?
    So, Mr. Chairman, before we break out the sharp pencils, we 
need to delve into the facts and answer these and other 
questions. I don't want to promote the wasteful spending of tax 
revenue, but neither do I want to embrace a pennywise and 
pound-foolish approach to providing our Federal courts with the 
resources they need to do their respective jobs.
    I look forward to participating in today's hearing, Mr. 
Chairman, and I thank you, and I thank the witnesses for their 
attendance, and yield back.
    Mr. Johnson. I thank the gentleman for his statement.
    Without objection, other Members' opening statements will 
be included in the record. I am now pleased to introduce the 
first panel witness for today's hearing.
    Our first panel will be Representative Jim Cooper. 
Representative Cooper has represented Tennessee's Fifth 
Congressional District since 2003 and is chair of the 
Congressional Courthouse Coalition Caucus of which, in full 
disclosure, I am a member.
    Representative Cooper sits on the Armed Services Committee 
and the Committee on Oversight and Government Reform. He is 
also an adjunct professor at the Owen School of Management at 
Vanderbilt University.
    Welcome, Representative Cooper. And, Representative Cooper, 
please begin your testimony.

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

    Mr. Cooper. Thank you, Mr. Chairman.
    Thank you to Ranking Member Coble, Mr. Gonzalez. I 
appreciate this opportunity to testify before your 
Subcommittee. It is a very important topic, to get the 
prioritization of Federal courthouses right, and I appreciate 
your interest in this important matter.
    The reason we formed the Courthouse Caucus, my friend, Jo 
Bonner, a Republican from Alabama--and we are very grateful, 
Mr. Chairman, that you have joined the caucus--we wanted to get 
congressional support behind an objective, fair way of building 
new courthouses in America, instead of what sometimes 
characterizes the old-fashioned pork-barrel process of just 
those who have the most political clout grabbing the Federal 
dollars and building whatever they want to build.
    I think that the Federal judiciary has done a responsible 
job of trying to identify their needs and to have a rational 
plan for moving forward to construct new buildings. So the 
Courthouse Caucus is devoted to that task. We have 16 members. 
And in this last budget cycle, we succeeded on getting the top 
five priority courthouses on the list for construction, which 
was something of a novelty in this body.
    Things like that shouldn't be news, but it is nice when the 
Federal judiciary's needs are actually identified and responded 
to by this coequal branch of government.
    I have a selfish interest in this. I represent the 
Nashville area, and we have been identified as a needy 
courthouse area since the early 1990's. Current occupants of 
that building, not only the Federal judiciary, but also other 
Federal agencies, have had to put up with leaky windows and 
poor heating and air conditioning and, worse than that, 
security issues that include unreasonable delays and trials and 
unreasonable causes for new trials, because, for example, when 
we are unable to get defendants into the courtroom outside the 
view of jurors, and the jurors see the defendant shackled, 
manacled, that can prejudice the jury and cause a demand for 
new trials.
    So it is very important that we have adequate facilities so 
that the rights of all parties can be protected, whether it is 
the prosecution or the plaintiff or the defendant. And to have 
a building in which jurors are notified that they have to wear 
overcoats because it is going to be so cold inside the building 
or so hot on a summer day that you have to put in back box 
fans, these are conditions that really are beneath the dignity 
of the Federal judiciary.
    I think that the system of American law is the best in the 
world, and we need buildings that demonstrate the strength and 
stability of that system.
    We in Nashville are not greedy. We have waited now 15, 20 
years to have our chance. We understand according to some 
lists, we are now number two on the list. Other lists put us at 
number six. We are patient folks. We just want the decision to 
be made, whether it is for Nashville or anywhere else in 
America, on the merits, objectively, using real criteria for 
caseloads, other needs of the Federal judiciary.
    So I am very grateful for your interest in this area. I 
would ask that my statement as written be put into the record. 
And I would be happy to help you and to dedicate the resources 
of the Courthouse Caucus to help the efforts of this Committee, 
because this is a very important thing that we get right and 
get right soon, because we all are aware of the need for jobs 
in our country. Building courthouses that are genuinely needed 
is the best way to help produce some of those jobs.
    So thank you, Mr. Chairman, for your interest in this 
important topic.
    [The prepared statement of Mr. Cooper follows:]
            Prepared Statement of the Honorable Jim Cooper, 
        a Representative in Congress from the State of Tennessee

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    Mr. Johnson. Thank you, Representative Cooper, for your 
work toward making sure that justice is not delayed so as to 
deny justice. Justice delayed is justice denied. And justice 
that comes under the conditions that you just spoke of is--I 
have to apologize for those conditions being in existence for 
the last 20 years. And I am not even responsible. But it is--
that is sobering to hear of those kinds of conditions.
    Now----
    Mr. Cooper. Mr. Chairman, we would like to invite you to 
Nashville. You mentioned you would be visiting some Federal 
courthouses, but you have a welcome--strong welcome in our 
community if you would like to see firsthand the conditions in 
our current courthouse.
    Mr. Johnson. I am going to take you up on that, and my wife 
will be happy to hear that. She is from Nashville. And that 
will cause us to have to leave a day early to get up there or 
stay a day later, either one. So we will do that. Thank you.
    Mr. Coble. Mr. Cooper, can we go to the Opry while we are 
there?
    Mr. Cooper. Whatever you would like. You are both my good 
friends. We are going to invite Mr. Gonzalez, too. We will have 
the whole Subcommittee come down, because we want you to see 
firsthand the real conditions on the ground, because that is 
the best way to make policy.
    Mr. Johnson. Thank you, Representative Cooper. And now we 
will begin our second panel.
    And, Representative Cooper, let it not be said that you are 
not one of those very powerful Members of Congress. We know 
better than that. So thank you for waiting your turn in line, 
instead of bogarting.
    Good afternoon, everyone. Our first witness on the second 
panel will be Mr. Mark Goldstein. Mr. Goldstein is the director 
of physical infrastructure issues for the Government 
Accountability Office. He is responsible for GAO's work in the 
areas of government, property and telecommunications.
    Mr. Goldstein has held other public-sector positions, 
serving as deputy executive director and chief of staff to the 
District of Columbia Financial Control Board and as a senior 
staff member of the United States Senate Committee on 
Governmental Affairs.
    Prior to government service, Mr. Goldstein was an 
investigative journalist and author. We welcome him here today.
    Our second witness will be the Honorable Michael Ponsor. 
Judge Ponsor is a United States district judge for the district 
of Massachusetts and chairman of the Judicial Conference 
Committee on Space and Facilities. Judge Ponsor was nominated 
by President Clinton in 1993 and prior to that was a United 
States magistrate judge for the District of Massachusetts.
    We welcome him here today.
    Our next witness will be Commissioner Robert Peck. 
Commissioner Peck has served as the commissioner of the public 
buildings for the United States General Services Administration 
since 2009. He is responsible for the design, construction and 
building management for 362 million square feet of government-
owned and-leased space.
    Prior to serving in this position, he worked at the Office 
of Management and Budget, the National Endowment for the Arts, 
and the Federal Communications Commission. Commissioner Peck 
also served as an associate counsel to the Senate Committee on 
Environment and Public Works and was chief of staff to the late 
U.S. Senator Daniel Patrick Moynihan.
    Welcome, Commissioner Peck.
    Fourth witness will be the Honorable Robert J. Conrad. 
Judge Conrad is a U.S. district judge for the Western District 
of North Carolina. Judge Conrad served as a Federal prosecutor 
for over a decade and gained national attention when he was 
named chief of the U.S. Department of Justice Campaign 
Financing Task Force in 2000. Prior to becoming a Federal 
judge, Judge Conrad served as a U.S. attorney for the Western 
District of North Carolina.
    We welcome Judge Conrad to our panel today.
    And our final witness will be Professor Judith Resnik. 
Professor Resnik is the Arthur Liman Professor of Law at Yale 
Law School, where she teaches about federalism, procedure, 
feminism, and local and global interventions to diminish 
inequalities and subordination. Professor Resnik is the author 
of many articles on federalism and the Federal courts and 
recently argued before the Supreme Court. She is the founding 
director of Yale's Arthur Liman Public Interest Program and 
Fund. In 2008, she received the Fellows of the American Bar 
Association--excuse me--American Bar Foundation Outstanding 
Scholar of the Year Award. And we welcome her here today.
    Thank all of you for your willingness to participate in 
today's hearing. And without objection, your written statements 
will be placed into the record.
    And we would ask that you limit your oral remarks to 5 
minutes. You will note that we have a lighting system that 
starts with a green light. At 4 minutes, it turns to yellow, 
then to red at 5. After each witness has presented his or her 
testimony, Subcommittee Members will be permitted to ask 
questions, subject to the 5-minute limit.
    Mr. Goldstein, please proceed.

      TESTIMONY OF MARK L. GOLDSTEIN, DIRECTOR, PHYSICAL 
    INFRASTRUCTURE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, 
                         WASHINGTON, DC

    Mr. Goldstein. Thank you, Mr. Chairman and Members of the 
Subcommittee. Thank you for inviting us here today to discuss 
the results of our report on the Federal courthouse 
construction program, which we issued June 21, 2010.
    Since the early 1990's, GSA and the judiciary have 
undertaken a multi-billion-dollar courthouse construction 
initiative that has resulted in 66 new courthouses or annexes 
with 29 additional projects in various stages of development. 
However, rising costs and other Federal budget priorities 
threaten to stall this initiative.
    This testimony, based on our report, discusses for 33 
Federal courthouses completed since 2000, one, whether the 
courthouses contained extra space and any costs related to that 
space; two, how the actual sizes of the courthouses compare 
with congressionally authorized sizes; three, how courthouse 
space based on the judiciary's 10-year estimates of the number 
of judges compares with the actual number of judges; and, four, 
whether the level of courtroom-sharing supported by data from 
the judiciary's 2008 study of district courtroom-sharing could 
have changed the amount of space needed in these courthouses.
    In general, our findings are as follows: 33 of the--32 of 
the 33 Federal courthouses completed since 2000 include extra 
square feet of space, totaling 3.5 million square feet overall. 
This space represents about nine average-sized courthouses. The 
estimated cost to construct this extra space, when adjusted to 
2010 dollars, is $835 million. And the annual cost to rent, 
operate and maintain it is $51 million.
    The extra space and its causes are, first, 1.7 million 
square feet caused by construction in excess of congressional 
authorization; 887,000 square feet caused by the judiciary 
overestimating the number of judges that the courthouses would 
have in 10 years; and, three, 946,000 square feet caused by 
district and magistrate judges not sharing courtrooms.
    In addition to higher construction costs, the extra square 
footage in these 32 courthouses results in higher annual 
operating and maintenance costs, which would largely pass on to 
the judiciary and others as rent. Based on our analysis of the 
judiciary's rent payment to GSA for these courthouses at fiscal 
year 2009 rental rates, the extra courtrooms and other 
judiciary space increases the annual rent payments by $40 
million.
    In addition, our analysis estimates that the extra space 
cost about $11 million in fiscal year 2009 to operation and 
maintain.
    I should note that GSA cited concerns with our methodology. 
Our methodology applied GSA's policies and data directly from 
original documents and sources, and our cost estimation 
methodology balanced higher and lower cost construction spaces 
to create a conservative estimate of the costs associated with 
the extra space.
    We believe that our findings are presented in a fair and 
accurate way and illustrate how past problems with the 
courthouse program could affect future courthouse programs and 
projects.
    Our second major finding was that, of the 33 courthouses 
built since 2008, 28 have reached or passed their 10-year 
planning period, and 23 of those 28 courthouses have fewer 
judges than estimated. For these 28 courthouses, the judiciary 
has 119 or approximately 26 percent fewer judges than the 461 
it estimated it would have, resulting in approximately 887,000 
extra square feet. The extra square feet includes courtroom and 
chamber suites, as well proportional allocation of additional 
public, mechanical spaces, and sometimes secure inside parking 
spaces in new courthouses.
    Our third major finding indicates that courtroom sharing 
could have reduced the number of courtrooms needed in 27 of 33 
district courthouses built since 2000 by a total of 126 
courtrooms, about 40 percent of the total number of district 
and magistrate courtrooms constructed since 2000.
    In total, not building these courtrooms, as well as their 
associated support, building, common, and other spaces, would 
have reduced construction by approximately 940,000 square feet. 
According to the judiciary's data, courtrooms are used for 
case-related proceedings--accorded the available time or less 
than average. Using the judiciary's data, we applied generally 
accepted modeling techniques to develop a computer model for 
sharing courtrooms. The model ensures sufficient courtroom time 
for all case-related activities, all time allotted to non-case-
related activities, such as preparation time, ceremonies, and 
educational purposes, and all events canceled or postponed 
within a week of the event.
    The model shows the following courtroom-sharing 
possibilities: Three district judges could share two 
courtrooms; three senior judges could share on courtroom; and 
two magistrate judges could share one courtroom, with time to 
spare.
    During our interviews and convening an expert panel on 
courtroom-sharing, some judges remain skeptical of sharing and 
raise potential challenges to courtroom-sharing, but other 
judges with sharing experience say they have overcome those 
challenges when necessary without postponing any trials.
    The primary concern judges cited was the possibility that 
all courtrooms could be in use by other judges and a courtroom 
might not be available. To address this concern, we programmed 
the model to provide more courtroom time than necessary to 
conduct court business.
    In our report, we recommended that the administrative GSA 
take the following three actions: one, establish sufficient 
internal control activities to ensure that regional GSA 
officials understand and follow GSA space measurement policies; 
two, to avoid requesting inefficient space for courtrooms--
insufficient space for courtroom space on the any court model, 
to establish a process in cooperation with the AOUSC by which 
the planning for the space needed for courtrooms takes into 
account GSA's space measuring policies; three, report to 
congressional authorizing committees when the design of a 
courthouse exceeds the authorized size by more than 10 percent.
    We also recommended that the AOUSC, on behalf of the 
Judicial Conference, take the following three actions: retain 
caseload projections for at least 10 years for use in analyzing 
the accuracy and incorporating additional factors into 
judiciary's 10-year judge estimates; two, expand nationwide 
courtroom-sharing policies to more fully reflect the actual 
scheduling and use of district courtrooms; and, three, to 
distribute information and judges on positive practices that 
judges have used to overcome challenges to courtroom-sharing.
    This concludes my testimony, sir. I am pleased to answer 
any questions that you or other Members of the Subcommittee may 
have. Thank you.
    [The prepared statement of Mr. Goldstein follows:]
                Prepared Statement of Mark L. Goldstein

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                               __________

    Mr. Johnson. Thank you, sir, for your testimony.
    Judge Ponsor, please proceed.

 TESTIMONY OF MICHAEL A. PONSOR, U.S. DISTRICT JUDGE, DISTRICT 
  OF MASSACHUSETTS, AND CHAIRMAN OF THE JUDICIAL CONFERENCE'S 
       COMMITTEE ON SPACE AND FACILITIES, SPRINGFIELD, MA

    Judge Ponsor. Thank you.
    My name is Michael Ponsor. I am the United States district 
court judge for the District of Massachusetts, Western 
Division. I have been a district court judge for 17 years and a 
magistrate judge for 10 years before that. I want to thank you, 
Mr. Chairman, Ranking Member Coble, and other Members of the 
Committee for having us here today to speak about these very 
important issues.
    I also want to note that my colleague, Judge Conrad, from 
the Western District of North Carolina, will be picking up on 
some of the themes I will touch on.
    I also want to thank particularly Congressman Jim Cooper 
for coming here today and, in his written comments and oral 
comments, articulating so eloquently the concerns that I will 
also try to address here today.
    My message to this Committee is very simple: We need 
assistance from your Subcommittee in facing what I think is a 
very grave situation which threatens the shutdown of the 
national Federal courthouse construction project. This shutdown 
will threaten access to justice for millions of Americans, 
compromise judicial administration, jeopardize courtroom 
security, and waste potentially millions of dollars.
    Let me give you some background on these comments. On May 
25th, as Mr. Goldstein indicates, we both appeared before the 
Subcommittee on Economic Development, Public Buildings, 
Emergency Management to discuss the GAO report.
    We had a vigorous debate about that, and I am pleased that 
the Committee Members are aware of our differences with the GAO 
report. I consider the report to be largely nonsense, and the 
three justifications supporting the supposed waste of public 
money to be very disturbing, unfair, and untrue.
    I don't want to get into all the reasons why I think that 
report went so far astray, because I want to use my time for 
something more important, but I am happy to address in detail 
any questions you may have about that.
    One point I will make is that, although we consider the GAO 
report to be terribly unfounded, poorly done, deeply unfair, we 
agreed with all of the concrete recommendations that were made 
in the GAO report. We agreed that we had either already 
implemented them or would implement them with one possible 
exception, which I may touch on now.
    The GAO report discussed the possibility of courtroom-
sharing and came up with models for courtroom-sharing that, 
frankly, had not only me, but the entire Federal judiciary 
aghast. The notion, as they suggested, that three active 
district court judges carrying caseloads of 400 to 500 civil 
cases, 100 to 200 criminal cases, three active district court 
judges could share two courtrooms and provide the sort of 
justice that Americans expect and deserve was shocking.
    We asked for their backup, their modeling for this, and we 
waited 4 months to get it. They repeatedly said that they used 
our data, but we knew what our data was, but we wanted to know 
what--how did they cook it?
    And we did on September 17th finally get a copy of their 
report from their modeling version. The man who was responsible 
for handling their modeling is a gentleman named Mr. Higgins, 
who is a lovely man. He has a B.S. in electrical engineering 
and his background includes modeling consumer soap production, 
construction of John Deere tractors, and the extraction of 
nickel from granite ore.
    The particular group that they had run the modeling had 
virtually no experience in court-type procedures. They knew 
about conveyor belts, robotics, tractors, and various other 
things. These were the people that they trusted to develop 
these models for courtroom-sharing, to tinker with the heart of 
the American constitutional system and to come up with this 
notion that two courtrooms were sufficient for three active 
district court judges, six for nine, nine for 12, and to blame 
us by retroactively applying this supposed policy and accuse us 
of overbuilding 946,000 square feet of courtroom space since 
2000 because we did not adopt this ridiculous notion of 
courtroom-sharing.
    We looked into it further. And let me tell you how they 
went about deciding that we could have two courtrooms for every 
three district court judges. They simply took the 10-hour day--
they said that Federal courts are in session from 8 a.m. in the 
morning until 6 p.m. That is right in their report. Ten hours a 
day, the average district court judge is in court for 6 hours. 
So multiple six times three, that is three judges, you get 18. 
Two courtrooms, 10 plus 10 equals 20, 18 goes into 20. 
Therefore, three district court judges can use two courtrooms.
    No consideration of continuances. No consideration of 
emergencies. No consideration of issues such as border states. 
This is how they came up with their courtroom-sharing model.
    Since then, things have gotten to be even more gray, 
because, as you know, there was a letter that went out on 
August 2nd from the Subcommittee on Economic Development, 
Public Buildings and Emergency Management saying that we should 
stop, shut down the entire Federal courthouse program 
nationally, until we engage in the sort of robust courtroom-
sharing that was, frankly, absurdly suggested in the GAO 
report.
    The impact would be devastating. This is the judiciary's 5-
year plan. These are courthouses that have all been waiting at 
least 10 years. There is no debate that every single one of 
those courthouses is desperately needed. We are talking about 
Los Angeles, Mobile, Nashville, Savannah, San Jose, San 
Antonio, Charlotte, Greenville, Harrisburg, Norfolk, Virginia, 
Anderson, Alabama, Toledo, Ohio, Greenbelt, Maryland. Every 
single one of those communities is waiting for a courthouse, 
and now we are faced with the suggestion that we should stop 
everything and keep these communities from getting the judicial 
resources that they need, hold up this plan, shut everything 
down, make people wait.
    This has an insidious effect on litigants. Imagine you have 
suffered a violation of your civil rights, you have suffered 
some affront to yourself. Are you going to ask yourself, can I 
go into court? Will I have to wait? Will I get a firm trial 
date?
    You are an assistant U.S. attorney deciding to initiate 
prosecutions. Will you have the resources to bring them?
    Security is threatened. Just a few months ago, we had an 
incident in Las Vegas that happened to be a courthouse that was 
secure, had a very courageous court security officer died 
defending that courthouse. If that courthouse had not had--
proper security, we would have had many more people dying.
    Money is being wasted. Right now, we have a courthouse in 
Salt Lake City that the money has appropriated. They are not 
even on our 5-year list. We are ready to go with that 
courthouse plan. Because of the downturn in the economy, we can 
save $25 million if we begin that courthouse project now. The 
money is not being appropriated. We are losing that opportunity 
to save funds.
    We ask--I will end where I started--we ask that we not 
allow these types of bricks and mortar issues to absorb and 
digest important values in our constitutional system, and we 
would appreciate any help this Subcommittee can give us. I 
would be happy to answer questions.
    [The prepared statement of Judge Ponsor follows:]
         Prepared Statement of the Honorable Michael A. Ponsor

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                               __________

    Mr. Johnson. Thank you, Judge Ponsor.
    Next, Commissioner Peck, please begin.

TESTIMONY OF ROBERT A. PECK, COMMISSIONER OF PUBLIC BUILDINGS, 
      U.S. GENERAL SERVICES ADMINISTRATION, WASHINGTON, DC

    Mr. Peck. Thank you, Mr. Chairman, Ranking Member Coble, 
and Representative Gonzalez. I am Robert A. Peck. I am 
commissioner of the GSA Public Building Service.
    As you--as you noted, Mr. Chairman, we--we own or lease 
360-some-million square feet of space in communities all across 
this country, and we provide space for more than 100 Federal 
agencies, law enforcement agencies, the military, the social 
service agencies that help our citizens. And we are prouder of 
none of them than--than the judiciary and our role in providing 
space for them.
    Federal courts play a critical role in the constitutional 
framework of our democracy. We are proud that for the past 15 
years in particular we have been building courthouses worthy of 
that role, worthy of the American people, and worthy of the 
communities in which our courthouses are built.
    Courthouses are traditional landmarks dating back way 
before the founding of our country. They have in our country, 
however, whether state, local or Federal, often been the center 
of gathering and the symbols of our democracy.
    The Federal courthouses in particular must support the 
Federal judiciary's mission of ensuring fair and impartial 
administration of justice for all Americans while providing 
security for judges, jurors and others engaged in the judicial 
process. This makes for complicated buildings and, yes, higher 
costs than the ordinary commercial office building.
    GSA has developed a strong partnership with the Federal 
judiciary. Since we began our design excellence program and 
Congress began funding a nationwide program of courthouse 
renovation and construction, we have compiled a solid track 
record of--of delivering high-quality buildings that support 
the court's unique needs while enhancing the building's 
surroundings. We do so within carefully considered design and 
budgetary guidelines and pursuant to congressional 
authorization and appropriation.
    Thank you for having this hearing today and focusing on the 
importance of these buildings and the effective administration 
of justice. We support the judiciary in carrying out this 
mission by constructing courthouses that allow them 
expeditiously and impartially to adjudicate cases for the 
American people.
    The courthouses that we construct are economic, given their 
mission, sound and prestigious. We work with the Federal 
judiciary to develop requirements to meet their needs. Since 
1996, as Judge Ponsor alluded to, the judiciary has used a 5-
year plan to set priorities on new courthouse construction 
projects, and we have followed it as best we can.
    We use the plan to develop project requirements in size and 
in cost that meet the needs of the courts. These requirements 
result in requests to Congress for authorization and 
appropriations. Since the program's inception, 67 new 
courthouses or annexes have been constructed, and Congress has 
authorized and appropriated approximately $7.5 billion for this 
program.
    We are continuing to improve our work on this program. In 
particular, we are improving the energy efficiency and resource 
use of the courthouses that we are building.
    We have established multiple layers of management and 
control to make sure that the costs of our courthouses are 
within guidelines. We stay within the statutory threshold of 10 
percent of appropriated and authorized funding levels, or we 
notify Congress accordingly.
    We have maintained the--the space requirements that--that 
we have presented to the Congress to the best of our ability. 
We have agreed, in line with the GAO report, that we will 
notify the Congress when space exceeds 10 percent of the amount 
that we initially reported to Congress.
    And I want to be clear: Sometimes there is a difference in 
the space that we initially provide to Congress as an estimate 
of courthouse needs because, as design becomes more detailed 
and we get closer to the point where we can construct and we 
have an actual site--which we often don't have when we first 
report to you--when we have an actual site, we can then tell 
exactly how much the space is going to be.
    We are, in fact, reporting to Congress any deviation in 
that size. Whether it is 10 percent or not, we just want to err 
on the side of total transparency.
    We give the courts a lot of credit for the fact that they 
have over the years agreed to share courtrooms among certain 
judges, senior judges and magistrates, and that has allowed us 
to build slightly smaller buildings.
    We have made important strides in improving the courthouse 
program, and we believe that the GAO report ignores the strides 
we have made, and I won't repeat what Judge Ponsor said, other 
to say, if I can characterize it, the GAO report exhibits 
breathtaking ignorance of basic construction methods and 
construction cost methodologies, leading to ludicrous 
conclusions. And for an agency that was founded in accounting, 
I can tell you that basically they have double-counted in 
trying--in figuring out how much the so-called empty space in 
our buildings contains.
    Our concerns with the report, to be more specific, are GAO 
used a space measure that assumes that upper space in building 
atriums is included in the gross square footage of an asset. 
That is simply not true. And no matter what measuring standards 
you use, take a look at this room. It has a certain volume. It 
only has one floor. We count the square footage of the floor.
    GAO compounded this erroneous assumption by ascribing 
inflated operating and construction costs to the empty volumes 
and retroactively applied a methodology of ``courtroom-
sharing'' to buildings designed in some cases more than a 
decade ago and pre-dating the inclusion of courtroom-sharing in 
the design guide.
    Most egregiously, the GAO report could be read to assert 
that GSA has neglected willfully congressional direction in the 
courthouse program. It is categorically not true. We have 
sought and followed regular authorizations and appropriations 
and reported regularly to the Congress on our programs.
    We are always happy to consult with anyone on doing better 
in running this program, but we are proud of what we have done 
to date and will hopefully be able to work with you and the 
Transportation and Infrastructure Committee in making this 
program even better. Thank you very much.
    [The prepared statement of Mr. Peck follows:]
                  Prepared Statement of Robert A. Peck

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    Mr. Johnson. Thank you, sir.
    Judge Conrad, please.
    And, yes, your microphone, and pull it closer.

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

    Judge Conrad. I speak to you with 5 years of experience as 
a Federal district court judge, Western District of North 
Carolina, located in Charlotte, as well as 15 years of previous 
experience as an assistant U.S. attorney and as a U.S. 
attorney, 20 years combined practice in the Federal court in 
Charlotte, North Carolina.
    And I come to you today not to whine, but to inform you 
about what it is like in the field in our Federal courts. We, 
like the court in Nashville, Tennessee, which Congressman 
Cooper addressed, are on the 5-year plan. We have been on the 
plan for nearly 20 years.
    I am the third chief judge in our district during the time 
period that we have been on the 5-year plan. My predecessor, 
Chief Judge Rupoli, comments on that posture as being in the 
12th year of a 3-year design program.
    We have patiently waited in line, but the line never moved. 
And the lack of movement in the line affects the delivery of 
justice in the Western District of North Carolina in 
significant ways. And I am going to speak about three of those 
ways, the issue of courtroom-sharing, the issue of court 
security, and the issue of the deteriorating conditions in our 
buildings.
    I believe that Congressman Coble knows that our courthouse 
is located--is an old historic building, built in 1915, 
renovated in the 1930's, and it contains only two courtrooms 
for a city the size of Charlotte, with a very complex civil 
docket and a very aggressive U.S. attorney's office.
    We have applied the concept of courtroom-sharing. We have 
more judges than courtrooms in Charlotte. And I want to tell 
you about our experience.
    Courtroom-sharing is an art, not a science. Our district 
court judges try to schedule around each other so that we don't 
intrude on each other's work. And one of the ways we have 
attempted to do that--we have more judges than courtrooms, and 
so we have on occasion commandeered our magistrate judges' 
courtrooms.
    Chairman Johnson, you spoke about your past as a magistrate 
judge. One of our magistrate judge courtrooms has a jury box, 
but the design of that courtroom is such, it is an L-shaped 
design. It is a very small courtroom. It was not designed for 
district court work. But out of necessity, in an attempt to 
handle our docket, we sometimes use that courtroom.
    Some of the attorneys cannot see all of the members of the 
jury. The jury has a hard time seeing the witness box on the 
other side of the courtroom. The witness box in this courtroom 
is several feet from the trial bench, which is not that 
elevated. It is 5 feet from the defense table. And it is inches 
away from an exit door. It is so woefully inadequate the 
security concerns coming out of that situation are obvious.
    Many of the criminal cases that we pursue involve 
cooperating witnesses hoping to get a reduction in sentence as 
a result of their cooperation. They are testifying against 
defendants seated just feet away from them. I don't think this 
is the model of the confrontation clause our founders 
anticipated. It is a security concern.
    We have trouble when we have had to handle civil cases in 
that courtroom, as well. We have had civil cases involving 
numerous attorneys--attorneys and trying to pack them into a 
very small courtroom has created difficulties in our 
administration of justice.
    Another way in which we have tried to share space in a way 
that accomplishes justice is that we schedule--we schedule our 
courtroom usage, and within the last couple of years, I had a 
situation where I had the courtroom for a week, and another 
judge was scheduled to try a jury trial the next week.
    And so what I tried to accomplish was to try two criminal 
trials in a 1-week period of time. The first trial involved 
about seven robberies and a shooting involving injury. It was a 
complex case. We kept the jury until 6 o'clock every night, 
dealt with trial motions, both after the jury left for the 
night and the morning before the trial.
    But nonetheless, that trial took longer than expected. In 
order to handle my docket, on the fourth day of trial, we 
instructed the jury--and then I gathered the court reporter, 
the marshals, the probation officers, and we walked down the 
hall to the second courtroom that I previously spoke about, the 
L-shaped courtroom that is so problematic, and we began a 
second trial, an armed drug deal transaction and started 
selecting a jury and putting on the evidence in that--in that 
trial while the jury was deliberating in the first trial.
    And the jury in the first trial had a series of questions. 
In order to answer their questions, I had to march back down 
the hall into the first courtroom, with all the assembled 
staff. The marshals had to escort the defendant from trial 
number two downstairs to a holding cell and bring the first two 
defendants up. We answered the questions, and the marshals had 
to reverse the process, bring two defendants in custody down in 
an elevator to a holding cell, pick up the defendant for the 
second trial, and escort him to that trial, all in order to get 
our work done, in order for a second judge to start a trial the 
following Monday.
    That is extremely problematic for us. We exhausted our 
court reporter. The marshals were strained to capacity, while 
we were dealing--going back and forth, two different juries had 
to waste time waiting for us to resolve business in the other 
court, and the victims and their family members, defendants and 
their family members were all inconvenienced, not to mention 
the stress it put on the trial court attempting to administer 
justice in both those situations.
    That has been my experience anecdotally. My colleagues have 
reported similar concerns. We sometimes double-booked the 
courtroom, anticipating that many trials will resolve without 
trial. When that hasn't happened, on one occasion, we had to 
assign court space in state county courthouse and try a case 
there.
    Now, my conclusion from all of this is that we have tried 
courtroom-sharing, and it doesn't work.
    I want to speak about security concerns. In our old 
historic building, we share everything. And I am not saying 
that in a positive light. The restrooms are shared. Our 
courthouse staff, the public, members of defendant families, 
victims, agents, lawyers, even grand jurors, even newspaper 
reporters all share the same restroom space.
    We share an elevator. There is one elevator in our building 
used to transport incarcerated prisoners and witnesses. Our 
staff uses that elevator, as well.
    Now, the only reason a defendant is in custody is either 
the judge has just sentenced that defendant to a time in prison 
or another judge has found that that person is a flight risk or 
a danger to the community. Nonetheless, those who have been 
found to be such regularly use the same elevators as our 
courthouse staff.
    Our corridors are probably are worst security concern. The 
people leave our courtroom at the end of a trial or a hearing. 
They go into a corridor that contains chambers, clerk's office, 
and other court personnel.
    Oftentimes after a sentencing hearing, emotions run high, 
but agents, lawyers, members of defendant families all exit in 
the same way at the same time, and there have been numerous 
occasions where marshals have had to break up verbal arguments 
between competing parties.
    I want to mention an experience I had as a sentencing judge 
in which I sentenced a gang member to a mandatory minimum 
sentence. And as I exit our courtroom, I exit--my exit is 
within feet of the door through which the marshals escort 
incarcerated defendants to the elevator for transport down to 
the holding cell.
    It is not uncommon for me to be exiting the courtroom about 
the same time as a criminal defendant. And in this one 
situation after I had just sentenced a defendant, we both got 
into the hallway together, walked side by side, and I was glad 
that I reached the end of the hall and turned left, as the 
defendant asked the marshal how much of that 20 years he was 
going to have to serve. And I was glad that I got to the 
turning point before the marshal told him that there is no 
parole in the Federal system.
    That kind of situation, where judges who have to sentence 
the people or conduct other very serious business, and then 
have to share corridor space, elevators, and other public 
facilities is untenable.
    We have a sally port in our old building, where the 
defendants are brought in from local custody. It is open to 
public view. And the sally port is within a couple parking 
spaces of where the judges park their vehicles.
    All of this to say that we have been on a list for a number 
of years, we have serious security concerns, and they are 
impacted by the failure to get the appropriate funding.
    And then as time has passed, our very historic building has 
deteriorated. And this is not a criticism of GSA. They have 
been very responsive to us.
    But years ago, thinking we were going to build a Federal 
courthouse, we swapped our courthouse with the city of 
Charlotte for prime upstate--or uptown real estate. We thought 
we would be constructing a courthouse soon. They thought they 
could use our existing courthouse for a law school.
    But we are still in our building. Our land is an uptown 
parking lot. And we pay rent to the city of Charlotte to be in 
our building because we haven't been able to construct our new 
courthouse.
    Not much incentive on GSA's part to pour--to pour money 
into an old money when you don't own it and you expect to move 
from it soon. And our old courthouse was never built with 
modern security concerns, with 21st-century technology 
development in mind, antiquated, deteriorating. At one 
particular sentencing hearing, the roof literally fell in on 
the defendant. There was a piece of ceiling tile that fell on 
the defendant's table as I was conducting the sentencing 
hearing.
    We have buckets strategically placed in our courtroom to 
catch the rain falling from the leaky roofs. I use a Mac Air 
laptop when I am in court. To my right is a computer monitor 
that allows me to get live transcripts. But beyond this 
technological facade are problems that we deal with in a very 
archaic way. Within 5 feet of my bench, we have buckets that 
catch the rain that leak through the roof when we have a storm. 
You know, and Mondays are interesting after a rainy weekend in 
our courtroom.
    My conclusion is this. I serve on the Judiciary Committee's 
space and facilities committee, subcommittee. And I have 
learned that Charlotte is not unique. Everyone on our 5-year 
plan has been there for a decade or more.
    Our tripartite form of government requires that before 
justice is done and the Federal criminal arena, the executive 
branch has to prosecute and the legislative branch has to 
appropriate. As your coequal branch, we ask you to fund the 
construction of badly needed courthouses and to do in a manner 
that permits maximum flexibility to our use of and access to 
the courtroom.
    Thank you.
    [The prepared statement of Judge Conrad follows:]
        Prepared Statement of the Honorable Robert James Conrad

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                               __________

    Mr. Johnson. Thank you, Judge Conrad. I believe your 5 
minutes has expired. [Laughter.]
    Next we will hear from Professor Resnik.

TESTIMONY OF JUDITH RESNIK, ARTHUR LIMAN PROFESSOR OF LAW, YALE 
                   LAW SCHOOL, NEW HAVEN, CT

    Ms. Resnik. Thank you, Mr. Chairman, Ranking Member, 
Members of the Committee. My name is Judith Resnik, and I am 
the Arthur Liman Professor of Law at Yale Law School.
    I am very honored to participate in this hearing. I have 
been a guest at symposia convened by the GSA and by the GAO and 
by the administrative office, and I am happy to have a chance 
to participate and comment here. And I want to make three 
points in these 5 minutes.
    First, in 1850, there was not a single Federal building 
owned by the United States government that had the name ``U.S. 
Courthouse'' on the front door. There were fewer than 40 judges 
at the trial of the lower levels around the United States, and 
there were about 50 Federal Government buildings, Marine 
hospitals, and customs houses.
    Today there are more than 550 buildings that include the 
name ``U.S. Courthouse.'' And why are there those new 
buildings? Because in a deep way, over the last 150 years, this 
country has been on the forefront of inventing adjudication as 
an important part of a functioning democracy.
    We can take for granted the courts, but in some way, the 
courts as we inhabit them are new in some respects. We have had 
independent judges for the last 250 years through our 
Constitution. Our Constitution and state constitutions 
guarantee rights, r-i-g-h-t, of access, public access to the 
courts that have to be open, moving old rituals or rites--r-i-
t-e-s--and spectacles of former governments into absolute 
obligations that we have a right to watch our government and 
our judicatory processes.
    Fairness, as an independent idea of equal dignity among the 
litigants and between the court and the litigants, is a 
relatively new idea. And most startling of all--all of us who 
are in this room are now rights-holders, and 100 years ago we 
weren't rights-holders in the same way.
    So we need to appreciate that we are the heirs to a new 
tradition. The buildings look big and stony, but they are 
actually the iconic emblem of a new commitment that this 
Congress has made to courts as central to American government.
    The administrative office tells us that between 1960 and 
1990's, this Congress created more than 400 new causes of 
action for people to bring rights and claims and cases to 
courts. You start at the beginning of the 20th century, there 
are about 30,000 filings; by the end of the 20th century, there 
are more than 300,000 filings.
    So when we reflect on this achievement, we have to 
understand these are important sites of democratic practice, 
where we can call the governments to account, as well as debate 
with each other the rights and obligations we have.
    It was that optimism and expectation that led the long-
range planning committee of the Judicial Conference in 1995 to 
say, by 2010, there will be about 600,000 cases or more in the 
Federal district courts. So that is the first proposition, as a 
little reflection.
    The second is that--the second point is, if the project of 
the 20th century was to get us all into court, the project of 
the 21st is what to do now that we are all there.
    And the problem is a real one. For some people, it helps--
calls of ``civil Gideon,'' the chief judge of the state of New 
York has said we really need to provide rights--and help people 
who need to enforce their civil rights to be able to come to 
court with lawyers, the legal services corporation, creating 
more judgeships and more courthouses is a part of it. That is 
one package of solutions.
    But others have resolved that, instead of that, they need 
to devolve or outsource our adjudication. So a vast amount of 
decision-making occurs in administrative agencies. The Social 
Security Administration has more filings in a year than the 
Federal district court, holding bankruptcy aside. The Veterans 
Administration, the employment, immigration, in 2001, there 
were more than 700,000 evidentiary hearings in those four 
Federal agencies, as contrasted to a lower number in the 
Federal district court.
    And we are watching the privatization of adjudication. I 
brought my cell phone contract, like yours. It is likely to 
say--mine certainly does say--I can't file a lawsuit in Federal 
district court. I have to go to mandatory arbitration, and I 
have to not--I am not able to enforce my Federal statutory 
rights in Federal court or state court because of these 
limitations.
    Further, the United States Supreme Court, many times 5-4, 
has imposed new hurdles through pleading requirements, through 
summary judgments that limit jury trials, through new 
immunities, through limiting implied causes of action. There 
are lots of factors.
    But the end point is that, instead of those 600,000 cases 
in the U.S. Federal district court, civil and criminal, we have 
roughly seen over the last decade that filings are relatively 
flat, instead of rising, as had been expected.
    So the idea and concern about underutilization may exist, 
which gets me to my third and final point. The answer, if there 
is a finding of underutilization, is not to stop building 
courthouses or funding judgeships or confirming judges. The 
answer is to find a way to help those people get to course and 
enforce their rights.
    I know that the Chairman has introduced the Arbitration 
Fairness Act in order to create a possibility for consumers and 
then employees to be able to bring their cases to court and not 
have heaps of contracts be enforced. Additionally, I hope that 
Congress will return to the Equal Access to Justice Act, which 
is the provisions that enable a victorious plaintiff against 
the U.S. government to recoup fees.
    The U.S. Supreme Court last spring interpreted that statute 
as providing that the fees go back to the claimant, rather than 
the claimant's lawyer, and so a man who had won against the 
Social Security Administration and had about $4,000 in 
attorney's fees, instead of it going to his lawyer, because it 
went to him and the government had a claim against him, his 
lawyer did get his $4,000 fee.
    So there are many--looking at the legal services 
corporations and equal access to justice--and as I suggested in 
my written statement, that there is a great disparity across 
the United States in terms of density of use. This Congress in 
1990 created the Civil Justice Reform Act. It asked each 
district court to convene individual committees to look at how 
the civil justice process was going on.
    One could create such committees at the district court 
level to talk to the users, state court, Federal court, 
lawyers, public and private users, to say, how are we using 
this space and to find ways to populate the courts, rather than 
to close down the process and limit access to them.
    So this is a very important topic about how to get people 
into court. And I commend the Chairman for initiating a 
conversation about the relationship between courthouse 
construction and literal access to courts. And I suggest that 
there are many ways to integrate the system and think about the 
state, Federal and administrative adjudicatory needs of the 
country and find ways to get us all able to use them.
    Thank you.
    [The prepared statement of Ms. Resnik follows:]
                  Prepared Statement of Judith Resnik

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    Mr. Johnson. Thank you, Professor Resnik.
    I have a few questions, Mr. Goldstein. And if you would, I 
have got four questions that can be answered either yes or no. 
And if you could answer the four questions yes or no, then I 
will give you time to explain, if you desire to do so. Is that 
fair enough?
    Mr. Goldstein. Certainly.
    Mr. Johnson. All right. Thank you. One, did the GAO 
conclude that no new Federal courthouse construction projects 
should be funded?
    Mr. Goldstein. No, sir. That was not in our report.
    Mr. Johnson. All right. Two, did the GAO conclude that the 
recommended courtroom-sharing must be applied?
    Mr. Goldstein. We made no recommendations per se about 
courtroom-sharing, other than they should adopt their own 
policies.
    Mr. Johnson. Three, did the GAO conclude that security 
concerns in courthouses should be subjugated to space 
calculations?
    Mr. Goldstein. We did not directly address security 
concerns in this report, sir.
    Mr. Johnson. And, four, did the GAO conclude that the 
Judicial Conference has resisted a congressional directive to 
share courtrooms?
    Mr. Goldstein. No, sir, we did not.
    Mr. Johnson. And I lied. I have got a fifth question. How 
much did we pay for that report on courtroom-sharing, the 
modeling?
    Mr. Goldstein. We paid roughly $45,000.
    Mr. Johnson. Okay. Now, any explanation that you would like 
to give with respect to either one of the 5 questions?
    Mr. Goldstein. No, because I answered with more than a 
simple yes or no.
    Mr. Johnson. All right. Okay. Thank you, sir.
    Mr. Goldstein. Certainly.
    Mr. Johnson. Judge Ponsor, my next question--in fact, Judge 
Conrad, you may have something to relate on this question, as 
well--I have extended an invitation to the United States 
Marshals Service, but they were not able to join us as a 
witness on your panel due to scheduling concerns.
    The Marshals Service is planning to submit a written 
statement for the record, however. And maintaining security in 
our courthouses is extremely important. And I assume that this 
is a concern that is shared by all of the Members on this 
Committee and the public.
    The marshals play the key role in ensuring that security. 
Can you discuss the courthouse protections provided by the 
Marshals Service? And can you also discuss the increased need 
for those protections in light of recent violence in 
courthouses, including a shooting in Atlanta several years ago, 
and the increased threat of terrorism since 2001? And also, can 
you discuss how that changes the funding requirements for the 
judiciary, Judge Ponsor?
    Judge Ponsor. Yes. The legendary Judge Arnold once said of 
the courts, there has to be a place where people can go and be 
safe, and we have to be it. There has to be a place where 
people can go and have their rights vindicated, and we have to 
be it. If we don't have that, we are Somalia. We are northern 
Mexico. We are Colombia. Our judicial system and the protection 
of people who seek access to our judicial system must be 
secure. And there is no question that that is getting to be 
more and more difficult.
    In my little town of Springfield, Massachusetts, which has 
about 150,000 people, before we built our new courthouse, I 
came into my court one day, and I found bullet holes in the 
window facing the jury. Imagine the unnerving experience of 
sliding into a jury box and seeing it look like something out 
of Al Capone, bang, bang, bang, bang, four bullet holes in the 
window shot from an adjoining garage over the weekend.
    I was using, as with Judge Conrad, elevators that were used 
by the same defendants that I just sentenced. They were usually 
in custody, fortunately. But I would also take the elevator 
with their family members. And there were some pretty tense 
elevator rides with family members and fellow gang members of 
individuals that I had sentenced.
    Costs have gone up. New courthouses have got to be blast-
resistant. There has to be a certain amount--at least on the 
lower floors--of bullet-resistant glazing. Setback requirements 
have increased. Architects have come to learn how to construct 
bollards and other reasonably attractive devices which serve to 
keep vehicles away from the courthouses. We live in an 
environment where we have to expect the possibility of serious 
problems.
    In the Los Angeles courthouse, which is one of our highest 
priorities, if not our highest priority, they are trying 
Mexican gang cartel cases with sometimes a couple of dozen 
defendants at a time. And they have the courtrooms arranged in 
such a way that the defendants can be shackled while they are 
in the courtroom out of the view of the jury.
    This is not going to get easier. It is not going to get 
easier. And the construction of courthouses that can handle 
this is absolutely essential.
    So, yes, Mr. Chairman, it is more expensive. It is 
pressing. But it is critically important if we are going to 
maintain civil society.
    Mr. Johnson. Thank you.
    Judge Conrad, anything to add to that?
    Judge Conrad. Briefly, I think our marshals serve 
heroically, are asked to do a great deal with not sufficient 
resources. Our marshals in recent cases in Charlotte have dealt 
with gang cases and with people in witness protection programs 
and trying to transport these defendants and witnesses in a way 
that doesn't prejudice them in front of the jury.
    And given the inadequate security--the inadequately 
designed security measures in our courtroom and the amount of 
things we ask marshals to do in a very dangerous situation, I 
think they perform heroically. But the funding issue for them 
is always an issue.
    Mr. Johnson. Thank you.
    Professor Resnik, can you discuss increasing access to 
justice--well, you discussed increasing access to justice in 
both your written statement and your testimony. What steps 
should Congress take to increase access to the courts? And are 
there any particular initiatives that you would like to see?
    Ms. Resnik. I do have specific suggestions. First, to 
commend to you the legislation that you have initiated, which 
is that the Federal Arbitration Act, which was created in 1925, 
spoke to mandatory arbitration in--spoke to changing the 
judicial view, which was very negative arbitration, in 
commercial activities.
    In 1925, it isn't clear that the U.S. Supreme Court would 
have interpreted the commerce clause as reaching the employment 
contracts of an individual and their employer or a modest 
country contact.
    Up until the mid-1980's, the U.S. Supreme Court further 
interpreted the Federal Arbitration Act as not applying to 
contracts that we would call adhesive, that--I don't have any 
negotiating capacity, but have to sign off--and further, 
interpreted some Federal statutes as so important that the 
courts had to be in the public realm, and therefore the Federal 
judges, like those sitting on this panel, needed to rule on 
claims of rights.
    Starting in the mid-1980's, however, the Supreme Court 
reversed its interpretation, often 5-4, and said instead that 
the FAA, the Federal Arbitration Act, did apply to eventually 
employee, consumer, and a host of other contracts, that if you 
wanted to argue that the alternative did not--in the terms of 
art--adequately vindicate your statutory rights, you, the party 
protesting the contract, had to show that the other proceeding 
was too expensive or too difficult. I know.
    Mr. Johnson. If you would, go up and wrap up that question.
    Ms. Resnik. And so these are statutory interpretations that 
obviously defenders on the court think are the wrong 
interpretations. Congress has complete ability to insist on the 
interpretation of these statutes, which will re-enact 
amendments to these statutes that make plain that they should 
not be applied to consumers and employees.
    Congress has already done so for franchisers and 
franchisees in some car cases, in an automobile fairness act in 
2002. Congress can do this again.
    The equal act--the justice act can be revisited to be sure 
that the lawyers, not the prevailing parties, get the fees. And 
furthermore, you could pass a statute like the Civil Justice 
Reform Act called the Equal Access to Courts Act of 2010 that 
would invite all of us into a conversation about how to help 
get access to courts and put on the agenda ``civil Gideon,'' 
state courts and state court needs, turning to the State 
Justice Institute and asking for information from the chief 
justices of the state courts, as well as for the--functionally, 
the judges, who are working in administrative agencies, because 
what we want is public decision-making.
    Mr. Johnson. All right. Thank you, Professor.
    And this question will require either yes, no, or just 
silence. Does anybody on the panel ever--does anyone on the 
panel have knowledge of any case where the judicial branch, the 
coequal judicial branch of the United States, has ordered the 
legislature to fund corrections to courthouses or judicial 
facilities that are uninhabitable? Has anyone ever heard of 
such a thing happening before?
    Okay. Everyone is silent, so I suppose not. That would be 
an interesting law school exam.
    Ms. Resnik. In the law school hat here, I should add that 
there are state courts where state judges have held that the 
failure to fund judiciaries violates state separations of power 
obligations. There is a pending lawsuit in New York, because 
there has been a failure to raise judicial salaries.
    And in Canada, the Canadian supreme court has held that 
there has to be independent setting of judges' salaries, so 
there are at least some models for courts saying to 
legislatures, ``Please fund us as a matter of constitutional 
independence.''
    Mr. Johnson. Thank you.
    I will now turn it over to the Ranking Member of this 
Subcommittee, Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Good to have you all with us.
    The courtrooms and courthouses portrayed by Judge Conrad 
and Congressman Cooper are inexcusable. Conversely, I am 
confident there are some courthouses and courtrooms that are 
excessively lavish, and I think they would be equally 
inexcusable.
    Let me then question the two judges. Gentlemen, what can 
the judiciary do to fulfill its constitutional mission in a 
more cost-efficient manner? Judge Ponsor or Judge Conrad?
    Judge Ponsor. There are two initiatives that I would 
highlight, I think at least to start the conversation, that I 
could think of. The first is the asset management planning 
process that the judiciary has been adopting for the last 
several years. That was referred to by Congressman Cooper.
    It means that we are able to apply objective criteria to 
courthouse situations and only fund new courthouses or 
renovations to existing courthouses where applying an objective 
yardstick, we find that it is really needed. And that process 
has been very helpful in prioritizing projects and making sure 
that only the projects that are needed get funded. That is one.
    Two, we have a design guide now, which has been refined 
over the recent years and which ensures that we are able to a 
very great extent standardize courtroom sizes, ceiling heights, 
offices, square footage, in a way which keeps costs under 
control.
    Despite the criticisms--and we aren't perfect--but despite 
the criticisms, we have improved that area of our effort 
tremendously. We were the first branch of the government to do 
really careful asset management planning. And we have specific 
criteria for that, and we are continuing to apply those 
criteria.
    The third point that I think I would emphasize is the fact 
that there is some requests that we courtroom share. And we 
have been courtroom-sharing. We have taken that initiative. We 
have studied it. We took the step of--now we have two senior 
judges sharing one courtroom in our new construction. That was 
a difficult process for us to come to. The senior judges are 
among the most revered and, in some cases, beloved members of 
our cohort. And we did that.
    We are sharing with magistrate judge courtrooms now, two-
for-one, with an extra criminal courtroom set aside. That has 
allowed us to tighten up on our courtroom construction. We are 
studying sharing bankruptcy judges, and we are thinking of 
sharing for larger courthouses.
    Mr. Coble. Do you concur, Judge?
    One more question, if I may, Mr. Chairman. The GAO 
indicated that judiciary may have contributed to some of the 
problems by not maintaining of caseload protection records that 
help in measuring future workloads and the need for new judges 
and, secondly, the failure to adopt more expansive courtroom 
sharing policies.
    Judge Conrad, do you want to respond to that? And I will be 
glad to hear from Mr. Goldstein, if he wants to answer it in 
rebuttal.
    Judge Conrad. Could you repeat the question? I am sorry.
    Mr. Coble. Yes, the GAO indicated that the judiciary may 
have contributed to the problems by not maintaining caseload 
protection records that assist in measuring future workloads 
and the need for new judges, A, and, B, by failing to adopt 
more expansive courtroom-sharing policies.
    Judge Conrad. I think Judge Ponsor's response to the 
courtroom-sharing question, response to that, I think the 
magistrate judges, bankruptcy judges, and senior judges, we are 
engaged in a sharing policy. The active Article III judges, for 
the reasons I described in my testimony, I think that sharing 
would be counterproductive and contrary to the needs of 
justice.
    Mr. Coble. Thank you, sir. Thank you, sir.
    Mr. Goldstein, want to respond?
    Mr. Goldstein. Thank you, sir. The notion that we asked the 
courts to retain historical records comes from the fact that it 
is difficult for them to predict with any certainty--obviously, 
in a number of ways--just how much--how many judges, you know, 
will be in any courtroom in 10 years. Everyone recognizes that 
between the, you know, vacancies and being able to appoint 
judges, as well as when senior judges will actually change.
    The area where we do think they can do a little better is 
in understanding the connection between caseloads and the need 
for judges, because a number of the case study courthouses we 
went to showed that, despite their prediction, that there would 
be a significant increase, and therefore they requested 
additional judges and built out space to accommodate that, 
there had been no change in caseloads.
    So by having a longer record, we would hope that they would 
be able to then better predict and better understand, you know, 
the varieties, you know, and the kinds of things that go into 
making those numbers up.
    Mr. Coble. Thank you all again.
    I yield back, Mr. Chairman.
    Mr. Johnson. Thank you, Ranking Member Coble.
    Next questions from Congressman Gonzalez.
    Mr. Gonzalez. Thank you, Mr. Chairman.
    And I know that I am going to have to be really brief, so I 
will ask the witnesses to see how brief they can be in their 
responses, but I just want to touch on something, Mr. 
Goldstein. In the GAO report--and the problem for the rest of 
the witnesses--Mr. Peck already knows this, the commissioner 
knows this--we place great stock on the GAO, because we charge 
them with so much in the way of responsibility, and we always 
say, ``Well, let's get a GAO report on this thing,'' so that is 
why we are where we are today.
    However, Mr. Goldstein, do you have an opinion as to 
whether members of Transportation and Infrastructure should be 
actually advocating for a moratorium on any of the courthouses 
that are in the 5-year plan, pursuant to the letter that has 
been referenced of August the 2nd?
    Mr. Goldstein. Congressman, that is really a policy issue. 
GAO does not take policy positions such as that. My purpose 
here today is to talk about issues you may have to discuss or 
need more information with respect to the report we wrote.
    Mr. Gonzalez. But you have responded that there was no 
suggestion in there that there should be a moratorium.
    Mr. Goldstein. We have made no suggestion. We have had no 
discussion of that in our report, that is correct, sir.
    Mr. Gonzalez. Did you take into consideration that if you 
did call a timeout, what kind of additional costs that and how 
do you make up for that? I am just going to give you a real 
quick example. You know, full disclosure, in fiscal year 2012, 
the San Antonio courthouse should be number one, but they are 
in a building that wasn't even designed to be a courthouse.
    But I don't even want to get into the particulars of what 
is parochial and such, because this is really across the board. 
I will ask Professor Resnik real quick, I think I understood 
what you were trying to get to and such, but what about the 
criminal caseload?
    Ms. Resnik. The----
    Mr. Gonzalez. I mean, in my area, that is substantial. And 
you are not going to have that taking place anywhere outside of 
a courtroom setting.
    Ms. Resnik. No, I am actually for trying to get more things 
into court. But the numbers--the 300,000 to 350,000 filings a 
year include civil and criminal. And I think what you are 
pointing to is exactly the great disparity of density of use--
border states being in very acute need for space and some other 
areas of the country with less.
    On the courtroom-sharing, one courtroom that has not been 
much mentioned are the court of appeals. I have argued in 
several of them, as I am sure others here have, and those are 
very scheduled spaces that are often not used, for example, in 
the afternoons in some circuits, sometimes for a couple weeks 
at a time. And if we are looking for more space and capacity in 
the system, one could look to consider how to use all the 
rooms.
    But I want to be very clear. The hope is you will look at 
the flattening filings nationwide and say, ``That is a problem 
that Congress needs to fix,'' in helping people----
    Mr. Gonzalez. No, and I----
    Ms. Resnik [continuing]. Come into----
    Mr. Gonzalez. And that definitely impacts our needs in 
identifying them. But I am going to ask Judge Ponsor and Judge 
Conrad, I mean, if you have a moratorium while you are trying 
to address the concerns of certain Members of the Committee 
that does have jurisdiction over construction, what could be 
the potential consequence of that?
    I know what it is for San Antonio, because we have got a 
land swap going with the city of San Antonio, and they are 
demolishing the police department in order to make room for the 
Federal courthouse, but then that has to make available the 
building in the round. We have--you have been to our 
courthouse. It was part of HemisFair 1968. It was an exhibit 
building.
    But what is the danger of the moratorium? I mean, what does 
that mean to the courts? What does that mean to the Federal 
budget?
    Judge Ponsor. I truly hope that this does not happen, 
because it would be devastating. In 15 to 20 cities, where 
these projects are waiting, we have sites that have been 
purchased, we have designs that have been developed, we have an 
opportunity in this economic climate to save millions and 
millions of dollars, if we can get going on our construction.
    The economic consequences are tremendous. The Salt Lake 
City courthouse, as I said, it is shovel-ready. It is designed. 
They have a site. They are ready to go. The money has been 
appropriated. We have rebid the project and saved $25 million, 
if we can begin the project now.
    The San Antonio situation is replicated over and over again 
in the country. And that is just the economic and logistical 
consequences that we will face if there is a moratorium.
    The impact upon human beings, flesh-and-blood people who 
need access to courts, in many communities, the state courts 
are overwhelmed. The only real access to justice has to be the 
Federal courthouse. The door has to be open. The facilities 
have to be available. And there we have a problem.
    Mr. Gonzalez. Judge, I hate to cut you short. My time is 
up. And I don't want to make the Chairman miss a vote, that is 
for sure. So I am just at this point--and I apologize, Judge 
Conrad. Hopefully I will never have to appear in your court, 
but I will yield back. Thank you.
    Mr. Johnson. Yes, I hope that I will not have to appear in 
your court, also, Judge Conrad, under those conditions that you 
cited.
    Judge Conrad. Bring a bucket. Bring a bucket if you do.
    Mr. Johnson. Yes, I will, and my hard hat.
    Mr. Coble. Mr. Chairman, if you will yield, Judge Conrad's 
family are good friends of mine, so don't be too hard on him.
    Mr. Johnson. Well, no. He is probably not deserving of such 
harsh treatment as he has been receiving as a Federal judge. 
But I do want to thank all the witnesses for the testimony 
today. Without objection, you will have 5 legislative days to 
submit any additional written questions, and I am speaking of 
the Members, which we will forward to the witnesses and ask 
that you answer as promptly as you can and be made a part of 
the record.
    Without objection, the record will remain open for 5 
legislative days for submission of any other additional 
materials.
    I reiterate my concerns about justice not being run over in 
a misguided attempt to maximize efficiency in our Federal 
courthouses. Again, I thank everyone for their time and 
patience. This hearing of the Subcommittee on Courts and 
Competition Policy is adjourned.
    [Whereupon, at 5:39 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record

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

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

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