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.