Americans seem pretty confident with their constitutional rights — except one.
A nationwide poll released last week shows that while well over 60 percent of Americans believe that rich and poor people have equal access to free speech, free expression of religion and the right to vote, only 28 percent — fewer than one in three Americans — feel they have equal access to the federal courts.
The telephone poll of 1,014 households in the lower 48 continental states was conducted by Opinion Research Corp. International of Princeton, N.J. It has a margin of error of 3 percent.
Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, said he is "troubled" by the poll's results but believes the public's perception of America's legal system is wrong.
Hatch pointed out that people may feel that way because "everyone knows that hiring an attorney is costly." A total of 46 percent of those surveyed said that if they had a legal problem they would not have enough money to hire a lawyer.
To ensure "equal access to justice," Hatch said, Congress has established the Legal Services Corp., a private, nonprofit, federally funded agency that helps provide legal assistance to low-income people in civil matters. Last year, the agency received $304 million in federal funding.
In Utah, lawyers have begun to meet their "professional responsibility" to a problem created in part by the "monopoly" they hold on the legal representation of individuals, said Fraser Nelson, executive director of the Disability Law Center.
This year, And Justice For All, an annual campaign that raises money for the state's three legal aid agencies, met its goal of having 2,000 attorneys donate the monetary equivalent of two working hours, raising about $500,000 that will be used entirely for individuals with legal needs, Nelson said.
That is a vast improvement from the less than $100,000 in donations received by the three agencies combined before the campaign debuted last year, and will benefit more of the approximately 75,000 people who need legal help for the first time each year, of whom only about 20,000 receive assistance.
The survey "underscores what we've known in Utah for a long time, which is that people have legal needs and don't have access to the services that can meet those needs," Nelson said.
Because the survey did not show a significant difference in opinion when the responses were broken down by race, people in general apparently feel that those "who can afford an attorney, the wealthy, can have better access" to the courts, and "if you have a good attorney, you are going to get better justice," Nelson added.
The cost of litigation, however, was not the only reason for Americans' disfavor with the courts. Of those surveyed, 49 percent said federal judges are "at least occasionally biased" against the poor, 47 percent believe that federal judges are appointed because they have raised money for political parties, and 37 percent believe most federal judges appointed today are wealthy white people.
Jeff Barge, the New York-based public relations consultant who commissioned the poll, says he was daunted by what he perceived as judicial bias when he had to represent himself in a trademark lawsuit against a California company. Despite owning his own business, Lucky Star Communications, Barge could not afford the $100,000 "up-front" deposit Los Angeles firms required to take the case.
The lawsuit was dismissed in January on a statue of limitations clause. But Barge points to a 1997 University of California Hastings College of Law study that suggests federal judges are reluctant to grant a trial in cases where one of the parties is proceeding "pro se," the legal term used when a litigant represents him- or herself.
"The results from the judgment parameter are unsurprisingly one-sided against the pro se litigant regardless of the litigant's status as plaintiff or defendant," wrote the study's author, Spencer G. Park. Out of more than 650 California cases involving a pro se litigant reviewed for the study, more than half were dismissed under a preliminary motion.
"This appears consistent with the general perception that many pro se plaintiffs bring meritless claims and face great difficulty following procedural rules," Park wrote.
ACLU attorney Stephen Clark agrees the apparent bias against pro se cases may be a result of how difficult it is for a lay person to adequately grasp and communicate the issues necessary for the proper adjudication of law and not due to judicial bias.
"Maybe that is just a function of how complicated and diffuse our laws are these days," Clark said. But "there are natural barriers to communication and to effective presentation of issues in a way that a judge can get his or her arms around them."
Clark, a former law clerk for U.S. District Judge Bruce S. Jenkins, does not believe federal judges get appointed for their political connections rather than for their experience and qualifications. He blames that misconception in part to the way Hatch and other members of the Senate Judiciary Committee have recently "handled certain appointments."
Last year Hatch shut down work on all federal judicial nominations until Senate Democrats would allow an immediate vote on the appointment of Judge Ted Stewart, a friend of Hatch's and Gov. Mike Leavitt's former chief of staff. Democrats had blocked Stewart's nomination as a new federal judge in Utah after national environmental groups and Utah Democrats said he lacked experience and had criticized Clinton's formation of the Grand Staircase-Escalante National Monument.
Democrats eventually allowed a vote on Stewart in exchange for votes on six judges that Democratic senators wanted.
Hatch defends his actions, saying the American Bar Association approved of Stewart's appointment. "I am convinced that under my direction, the committee has confirmed only honest, fair and qualified nominees to the federal bench," he said. Stewart and other federal judges in Utah did not return a call for comment.
Hatch added that research over the past decade showed that about two-thirds of appointed judges have a net worth of less than $1 million and that only about half had been active in political parties.
"More minority and female judicial nominees have been confirmed in the last decade than at any other time in history," Hatch said. "This trend — which will continue no matter who is elected president — should put to rest the perception that all federal judges are old white males."