[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
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Printed for the use of the Committee on the Judiciary
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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
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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
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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
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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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Judge John M. Roll, Chief District Judge,
District of Arizona
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]