Vol. 5 No. 10 (October, 1995) pp. 246-248
JUDICIAL SELF-INTEREST: FEDERAL JUDGES AND COURT ADMINISTRATION
by Christopher E. Smith. Westport, Connecticut: Praeger, 1995.
160 pp. Cloth $49.95.
Reviewed by Thomas Church, Department of Political Science, State
University of New York at Albany.
This book purports to describe the role of judges in making
policy regarding the administration of justice in the federal
courts, and "...to refine and clarify the contemporary
understandings about the influence of federal judges over
judicial administration" (p. 3). It has been more than 20
years since Peter Fish wrote his seminal Politics of Federal
Judicial Administration (1973). In light of substantial changes
in the processes by which judicial administration and reform
policies are made in the federal system, to say nothing of
debates over the alleged "litigation explosion," the
"imperial" federal judiciary and, more recently, the
"hollow hope" of social reform through the courts,
Smith promises a book that clearly is needed. But the author's
aims are even more ambitious: "The goal of this study is to
move beyond a discussion of how judges influence court reform in
order to examine why judges are motivated to act and how their
actions affect American society and the quality of justice
produced by the federal courts" (p. 3).
A skeptical reader might wonder how the author can pack into 134
pages of text (1) a study of the process of administrative
policymaking in the federal courts, (2) an examination of the
motivations of the key judicial actors, (3) an analysis of the
effects of judicial decisions on American society, and (4) an
assessment of the quality of justice dispensed by the federal
courts. Such skepticism would be warranted. While JUDICIAL
SELF-INTEREST might have provided a much-needed analysis of the
politics of administration and reform in the federal courts, it
is instead a somewhat uneven description of several case studies,
linked by a common theme that the self-interest of judges affects
their decisions regarding administration of the courts. The
somber lesson to be drawn from this less-than-startling
revelation is that "...there are grave risks that judges'
manifestations of self-interest will produce undesirable
consequences" (p. 126).
The bulk of the book is comprised of short case studies of
decisions concerning the administration of justice in the federal
courts: Congressional passage of the Judicial Improvements Act of
1991 and legislation raising judges' salaries, Supreme Court
decisions restricting habeas corpus petitions from prisoners, and
a discussion of "bureaucratization" of the federal
courts. The choice of case studies would seem to have more to do
with the author's previously published research -- from which
several of the case studies are drawn -- than with the basic
thrust of the book. The first two case studies concern the
judicial role in legislative decisions affecting administration
of the federal courts; yet neither describes the processes of
decision making in enough detail to support generalizable
hypotheses. The chapter on passage of the Judicial Improvements
Act focuses primarily on the sections of the act dealing with the
title and role of Federal Magistrates (now, Magistrate
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Judges), a topic which Smith has written about previously, but
which was not a central part of the legislation. The chapter on
judicial salaries is primarily a substantive critique of the
judges' arguments in favor of higher salaries, rather than an
analysis of how and why the ultimate salary decisions were made.
The habeas corpus chapter is a reproach of Supreme Court efforts
to reduce the number of prisoner petitions to the federal courts;
as an analysis of cases and doctrine, it sits uneasily with the
rest of the book. The "bureaucratization" discussion is
essentially a reprise of long-existing arguments against
appellate judges' allegedly excessive reliance on law clerks.
The point of these case studies seems to be that judges allow
self-interested motivations to sway their actions. Thus, when
considering the formal powers to be given to Federal Magistrates,
federal district judges were influenced by an appraisal of
whether these judicial officers would dilute their own status as
Article III judges. When pushing for higher judicial salaries,
judges were affected by personal assessments of their intrinsic
worth, and not by a comparative calculus that would show federal
judges already to be very high on the nation's salary ladder. In
deciding to reduce prisoners' access to the federal courts
through the habeas corpus device, and in assigning significant
activities to their law clerks, appellate judges may have acted
to reduce their workload rather than for the greater good of the
federal courts.
I have two major complaints with this book. I am, first of all,
disappointed that Smith didn't seriously examine the judges' role
in the process of policy making on federal court administration,
a focus that was explicitly promised at the beginning of the
book. While there is a cursory discussion of "judicial
lobbying" in the chapter on the Judicial Improvements Act,
there is little nitty-gritty description and analysis of how this
takes place and what its consequences and implications are for
policy-making on judicial administration issues. There is very
little discussion of process in the chapter on Congressional
consideration of judicial salary increases. Subsequent chapters
discuss it not at all.
I am aware of no comprehensive discussion of how judges,
individually or collectively, affect the policy process in
critically important areas such as criminal justice, civil
procedure, the authorization of new judgeships, the organization
of the circuits, etc. The best we have on this topic at present
is Barrow and Walker's (1988) fine study of the division of the
Fifth Circuit. But this is one case study describing an
admittedly special circumstance; I know of no recent work that
describes these processes more generally. Reviewers are
frequently faulted for criticizing authors for not writing the
books the reviewers would like to see written; but the author in
this instance explicitly promised a book that examined judges'
influence on judicial administration decisions, and then failed
to deliver on that promise.
My second gripe is with the general tone of the book when
discussing "judicial self-interest," a term which has
clear pejorative implications in the author's lexicon, despite
his initial protestations to the contrary. Smith speaks of
"unabashed" (p. 46), or "blatant" (p. 11)
self-interest, for example,
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when discussing judges' efforts to raise their salaries. In
another section, he argues that "...the perception of a
caseload crisis' [in the federal courts] is likely to feed the
judges' inclinations toward self-interested action" (p.
313). These would appear to be an "inclination" that we
should not "feed."
The notion that government officials pursue their own self
interest, that they identify personal interests with the
institution with which they are affiliated, is hardly news.
Indeed, we are told by Madison in Federalist 51 that the Framers
of the Constitution consciously sought to attain this result:
[T]he great security against a gradual concentration of the
several powers in the same department [of government] consists in
giving to those who administer each department the necessary
constitutional means and personal motives to resist encroachments
of the others.... Ambition must be made to counteract ambition.
The interest of the man must be connected with the constitutional
rights of the place.... [T]he private interest of every
individual may [thus] be a sentinel over the public rights.
(Hamilton, Madison & Jay, p. 321-22)
Self-interest "rightly understood" underlies the design
of the entire constitutional system. For better or worse, the
system explicitly rests on the assumption that government
officials are not angels, and it uses their self-interested
motivations to protect against tyranny. There is no exclusion of
members of the third branch from this calculus.
It is thus peculiar to find a political scientist in 1995 newly
discovering the operation of self-interest on the part of
government officials, even federal judges, and then decrying
those judicial officers who "...appear to be motivated by
the belief that What's good for federal judges is good for the
court system'" (p. 126). If the Federalist Papers didn't
accomplish this result in 1787, I would have thought that we lost
our faith in judges as something other than mere mortals with the
advent of legal realism in the 1920s and 1930s.
References
Barrow, Deborah J., and Thomas G. Walker (1988) A COURT DIVIDED:
THE FIFTH CIRCUIT COURT OF APPEALS AND THE POLITICS OF JUDICIAL
REFORM. New Haven, Conn.: Yale University Press.
Fish, Peter G. (1973) THE POLITICS OF FEDERAL JUDICIAL
ADMINISTRATION. Princeton, N.J.: Princeton University Press.
Hamilton, Alexander, James Madison, and John Jay (1961) THE
FEDERALIST PAPERS. Clinton Rossiter, ed. New York: New American
Library.
Copyright 1995