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TALLAHASSEE - In 1976, an undistinguished Miami circuit judge, Harvie S. DuVal, saw an opportunity to be elected to Florida's highest court. Gov. Reubin Askew had appointed a black man, Joseph W. Hatchett Jr., to a Supreme Court vacancy left by a corrupt justice who quit because he was about to be impeached. Now, Hatchett had to defend the seat. No black had ever won a statewide campaign; George Wallace had taken Florida's presidential primary just four years before. DuVal made race the issue by charging that Askew had practiced "reverse discrimination" in selecting Hatchett over six better-known white nominees.
Hatchett whipped the stuffing out of DuVal. He won with more than 60 percent of the vote, which commonly defines a landslide.
The voters did that because it was right. One of the things that made it right was what they had learned about DuVal.
Miami lawyers already considered him notorious for the frequency with which he ruled in favor of clients represented by a certain lawyer who was reputed to be his close friend. Sometimes they would even advise their own clients to give up if they found themselves opposing that lawyer in DuVal's court. In the worst case, he jailed 18 Greyhound kennel owners for refusing to race their dogs in a dispute with the Flagler Dog Track, which the lawyer represented.
DuVal and the lawyer were rumored to be hunting buddies. He conceded that, but said it didn't matter because they each paid their own way when they hunted deer in New Mexico.
Like Martha Stewart, DuVal talked too much for his own good. The ranch he mentioned was a Boy Scout property, whose management revealed that the lawyer had routinely paid $500 a day for each of his guests to hunt on the property. The lawyer tried to pass it off as a charitable contribution and DuVal said he hadn't known about the daily fee, but the impropriety was underscored by another judge who had been hunting with them. That judge said he routinely excused himself from sitting on the lawyer's cases. Not so DuVal, who had refused a request to step out of the continuing dog track case less than two weeks after one of the hunting trips.
More was at stake for Florida than just one judgeship. The state Supreme Court had been a school for scandal. One justice quit over high-rolling gambling trips, two others for having done highly improper favors for friends. Now the court was trustworthy again, and the people of Florida wanted to keep it that way.
Which brings Justice Antonin Scalia to mind. He is jeopardizing the trustworthiness of his court, the highest in the land, by continuing to sit on an intensely publicized case involving his good friend, Vice President Richard Cheney.
Scalia enriches the literature of jurisprudence nearly every time he writes, but his 21-page memorandum refusing to recuse himself from the Cheney case was more a masterpiece of propaganda than of law.
Scalia cleverly disposed of the main issues by misstating them. That he and Cheney went duck-hunting together is, as he said, not inherently disqualifying. Neither was his flight to Louisiana aboard the president's plane. It was, as he acknowledged, a splendid convenience but saved him no money. It was also beside the point. So were the undisputed facts, as laid out by Scalia, of previous close relationships between presidents and Supreme Court justices.
What Scalia's memorandum revealed, more than any of his critics knew, was the depth of his friendship with Cheney. It was Scalia who conveyed the invitation to Cheney. In that light, should he sit in judgment on any case that personally involves such a friend?
Even Scalia conceded that he should not, but misstated the issue yet again by insisting that the case involves the vice president only in his official capacity, not personally. Cheney has much more to lose than if he were being sued for money. The real significance of the documents whose disclosure is in question bears on whether Cheney, fresh from making millions in the oil industry, used his position in the White House to make it a wholly owned subsidiary of that same industry. Many people suspect that to be the case, but may never know whether it's true or false if the court votes against disclosing the documents.
It's not just the press that cares about that, as Scalia slyly implied. It's many millions of Americans, lots of whom already believe that Cheney wouldn't be the vice president but for the court's historically questionable decision in Bush vs. Gore four years ago. For all of Scalia's brilliant sophistry, they would not be likely to respect a decision that turned on his vote in favor of his special friend at the White House.
Ultimately, Cheney's reputation is not what's most at stake now, but rather the prestige of the court itself. The nation can afford a Supreme Court with which people disagree, but not one that they disrespect and mistrust, which could easily be the price of Scalia's arrogance.