A final farewell to one of Florida's great figures
By MARTIN DYCKMAN
Published September 5, 2004
TALLAHASSEE - The event was so long ago that I have forgotten the subject of the panel discussion that filled an auditorium at Florida State University. But I would always remember the older man with the distinguished appearance who chatted pleasantly as we waited for the program to begin. I assumed he was faculty. He didn't drop a clue as to who he was.
"I see you and the attorney general had a fine time last night," remarked one of my professors the next day.
By the book, only public officials - certainly not college students - were entitled to attorney general opinions. But he wrote right back when I asked whether a new "good government" law barred me, as a state-paid student assistant, from carrying out a class assignment to volunteer in some campaign and write about it. He liked the assignment but he couldn't find a loophole.
There was never a less pretentious politician than Richard W. Ervin. As the pastor remarked at his funeral, it was miraculous that a man with eight certified holes-in-one remained so humble.
Expecting the church to be standing-room-only, nearly everyone arrived early for the funeral last weekend. But when the service began, only a few state troopers occupied the long galleries where slaves once sat.
"When you have lived 99 years," observed Walter Moore, a friend, "you have outlived most of those who would want to come."
Ervin, who retired from the Supreme Court 30 years ago, outlived virtually all the journalists who covered him as attorney general for 15 years and on the court for 10. He survived all the governors and Cabinet members and all but one of the justices with whom he had served. Former Gov. Reubin Askew attended and former Attorney General Bob Butterworth was a eulogist, but of the three branches of Florida government only the judiciary, with its predisposition to precedent and protocol, was fully represented at the last farewell for one of Florida's great figures.
"Was he a good man?," asked one of my sons, who, like most of those reading Ervin's obituary, had not heard of him before.
"Yes, absolutely," I said.
He did not always do good things, I added, but he had lived long enough to more than make up for the bad ones.
In the aftermath of the U.S. Supreme Court's 1954 school desegregation ruling, Ervin was one of only six Southern attorneys general who agreed to participate in its subsequent hearings on how to implement the decision. Ervin promised the court that Florida, if given enough time, eventually would comply. If pushed too soon, he said, public resistance would be permanent.
Ervin's input, which was sincere, contributed to the court's conclusion that school desegregation should proceed "with all deliberate speed." Strident racists throughout the Deep South took that as an invitation to foment defiance and dig in. One of those racists opposed Ervin for re-election in 1956. Another took on Gov. LeRoy Collins, a moderate who promised to support segregation but had private doubts, which he would soon make public, about the morality of it. The pressures of their campaigns left Collins and Ervin at sharp odds over what to do next. Ervin supported school-closing legislation that Collins vetoed and a meaningless "interposition" resolution that the governor denounced.
Ervin lived long enough, however, to not only express regret but atone for all of it. He became the Florida Supreme Court's most liberal justice. Many of his greatest opinions were in dissent, especially concerning the death penalty and the environment, but several of his dissents later became majority positions. The U.S. Supreme Court adopted his view entitling capital defendants to know everything that the judges are reading in pre-sentence reports.
But the courts have yet to agree with him that the death penalty belonged to the past. Florida became the first state to re-enact capital punishment following the U.S. Supreme Court's Furman decision in 1972. Ervin wrote that no one had proved "any compelling state interest" in taking the lives of selected criminals. He hoped that the Legislature someday would "reconsider this profound subject less precipitously and passionately than it did, less under the influence of archaic and atavistic impulses and the whip of public furor stirred by national and local political opportunism."
Dissenting to the execution of John Spenkelink, the first to die, Ervin wrote:
"As usual under "discretion,' it is left to sentencing judges to determine in particular cases who will get death. We know intuitively who will: the poor, the underprivileged, the public defender clients; the blacks and other minority people, the mentally incompetent or those holding unpopular or unorthodox ideologies. The affluent usually escape the death penalty. . . ."
Ervin lived long enough to see that come true, but not long enough to see it corrected. I don't think I'll see it either. But someday, perhaps, everyone will.
