Vol. 5 No. 10 (October, 1995) pp. 249-250
Christopher E. Smith, Response to Thomas Church’s review of JUDICIAL
SELF-INTEREST by Christopher E. Smith.
It is with great reluctance and apologetic embarrassment that I respond
to Professor Thomas Church's review of my book, JUDICIAL SELF-INTEREST:
FEDERAL JUDGES AND COURT ADMINISTRATION (Law and Politics Book Review,
Oct. 20, 1995). In a world rocked by such scourges as poverty and war,
it would be unseemly to personalize a debate or generate a "controversy"
over a matter as trivial as a book review. Thus my comment is not directed
at Professor Church, who approached his task as reviewer in good faith
and with the earnest analytical effort that we all recognize in his scholarly
work. Instead, I feel compelled to provide a comment for those who will
read only the review but will never examine the book itself.
I have the utmost respect for Professor Church's scholarly reputation
and I endorse absolutely his right to state forthrightly his views about
my work. As an author, I must inevitably be prepared to accept some of
the responsibility if readers do not understand the objectives of one of
my books. Thus I do not begrudge Professor Church his interpretation of
my statement "The goal of this study is...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" as a promise to present the definitive
work on the politics of judicial administration and reform. In turn, I
presume he would not begrudge me my conclusion that his statement "the
author...explicitly promised a book that examined judges' influence on
judicial administration decisions, and then failed to deliver on that promise"
is an overstatement that reflects his disappointment that my book was not
as comprehensive as he had hoped it would be.
I must clarify, however, the implications of Professor Church's concluding
rhetorical flourish in which he indicates that my book naively claims to
"newly discover[]" that judges act in self-interested ways when any modern
scholar should know that James Madison informed us about this phenomenon
among government officials two centuries ago. For those who have not yet
examined the book, I would simply note that the book's introduction acknowledges
Madison's lesson (p. 4: "The recognition of self-interest as an inherent,
if not innate, element of basic human nature permeates the design of the
institutions and processes of American society"). Indeed, the introduction
makes reference to Madison himself in seeking to present the book's objective
as the further illumination of judges' self-interested actions:
Analysts of American politics and government from James Madison to
twentieth-century political scientists have recognized that American politics
and government are shaped by the strategic interactions of interests....Although
federal judges are usually pictured as judicial decision makers who are
preoccupied with legal cases and removed from the day-to-day conflicts
and interactions of American politics, their role and behavior are different
when confronted with issues that affect their status, power, and accouterments
of judicial office. Thus, a central theme of this book is that federal
judges should be more clearly recognized as a self-interested group that
is well positioned to shape judicial administration and court reform initiatives.
(p. 6)
I hope that readers will not misperceive my objective of "more clearly
recogniz[ing]" the self-interested actions of judges as a claim that I
have just newly discovered that judges can be self-interested. Thus, the
use of case studies was a vehicle to advance "[t]his book['s] aspir[ation]
to be a step, and an admittedly small one at that, toward increased understanding
of the judicial branch by focusing on the role of judges' self-interest
in shaping court reform and judicial policies" (p. ix) rather than a means
to present a definitive, comprehensive analysis of a new discovery.
Professor Church and other readers are perfectly free to conclude that
I am not sufficiently thorough, comprehensive, knowledgeable, thoughtful,
analytical, etc. I could never object to such conclusions made in good
faith. Alas, it is more difficult for me to leave undisturbed any implications
which purport to show that my work is fueled by blind naivete about judges'
self-interest or abject ignorance about Madisonian thought, especially
if such implications might deter my colleagues from examining the book
for themselves.