“Justice is a train that always comes too late.” –Yevgeny Yevtushenko
Knowledge may be power but too much of it at once can be, well, overpowering. I’ve been a consummate reader since childhood when Catcher in the Rye and Instant Replay captured my imagination and I realized that entire evenings could be lost in books. A decade later I recognized that a career could be built on words.
There are days, however, when, like Honoré de Balzac and his 50 cups of coffee per day, I am over-satiated with information and lose intellectual interest in almost everything – a sharp decline from my normal interest in almost everything – and I just cannot read one more article, op-ed or essay about the day’s news.
There I was, Saturday morning, and I thought I would take in information in my second favorite medium, via audio, so I listened to the New York Times’ podcast The Daily, one of the best news analysis podcasts in existence.
This time, it was a mistake. Not because it wasn’t perfectly executed audio, but because it was too well done, too painful. It reminded me of why I so often listen to the radio serials from the 1930s through the early 1970s, where mysteries, westerns, police dramas, science fiction and comedies sooth an overtaxed mind. The most emotionally dangerous shows in that genre are War of the Worlds and the lesser-known The Outer Limit and The Parade.
I listened to the tragic stories told by Garry Gottfriedson, who, at the age of five in 1959, as a member of the Tk’emlúps te Secwépemc First Nation in British Columbia, was mandated to be separated from his family and attend the Kamloops Indian Residential School. It is a brutally powerful show if you can afford the emotional toll of listening. The stories he shared about the schools – the pedophilia, the physical and mental abuse that drove at least one young girl he knew to suicide, the slave labor under the guise of “education” – leave you wincing and wondering the existential question, “Where was God?”
These were largely Catholic priests and nuns, operating under the dictates of the Canadian government. Our kindly neighbors to the north, led by “people of God,” mandated by a government intent on eviscerating every last vestige of First Nation people – their land, language, culture, family, beliefs. These acts are only now coming to light because of two ghastly discoveries of the remains of hundreds of First Nation children in unmarked graves. Beware, these stories of atrocities are likely coming south as the U.S. Department of the Interior begins its own domestic investigations.
For all of our unbridled optimism – the days when all we see are rainbows and all we hear are the birds symphonically chirping – this was a day to fixate on man’s inhumanity. The Holocaust, the Cambodian killing fields, Darfur, Bangladesh, Rwanda, nearly a half millennium of slavery, Manifest Destiny and on and on. If the Unidentified Arial Phenomenon we are seeing are real, is there any doubt why they aren’t stopping here?
As 19th century American Unitarian preacher and abolitionist Theodore Parker wrote, and as Martin Luther King, Jr. later made famous, “The arc of the moral universe is long, but it bends toward justice.” I think so, but there are days when I am not so sure. Just who has the courage to bend it?
Who has the strength to work like Sisyphus bending the arc of the moral universe inch by inch? The ones who are self-aware but not self-righteous, who have doubts but are ultimately indefatigable?
After years of us being aware of each other but never working together, I had the honor to interview Ted Boutrous: a partner in the law firm of Gibson, Dunn & Crutcher, a member of the Firm’s Executive and Management Committees, a specialist in First Amendment law and “Top Lawyer of the Decade” (Los Angeles & San Francisco Daily Journals, 2021), “Litigator of the Year, Grand Prize Winner” (American Lawyer 2019) and “100 Most Influential Lawyers in America” (National Law Journal, 2013) among many other honorifics. He joined my co-host Michael Zeldin of That Said with Michael Zeldin on CommPRO and me on our weekly podcast, Real Washington. The conversation went so deep and was so interesting we immediately all agreed to do more shows together.
Ted discussed the growing threat to New York Times v. Sullivan, a landmark First Amendment case and the bedrock of modern First Amendment law; the Critical Race Theory debate; the current Supreme Court makeup; representing Mary Trump and other issues before the courts.
As The New York Times has noted, Mr. Boutrous has “a long history of pushing the courts and the public to see the bigger picture on heated issues.” He has argued more than 100 appeals, including before the Supreme Court of the United States, 12 different federal circuit courts of appeals, nine different state supreme courts and a multitude of other appellate and trial courts in complex civil, constitutional and criminal matters.
He successfully represented CNN and Jim Acosta in bringing First Amendment and Due Process claims against President Donald Trump and other White House officials, forcing the White House to restore Mr. Acosta’s press credentials and doing the same successfully for Brian Karem, Playboy’s White House Correspondent (who previously appeared on Real Washington). In a landmark ruling, along with Gibson Dunn partner and legal legend Ted Olson, they successfully overturned California’s same sex marriage ban (Proposition 8).
In the early part of the last century, Learned Hand of the United States District Court for New York was coincidentally on a long, snow-delayed train ride with U.S. Supreme Court Justice Oliver Wendel Holmes, and over nine hours they discussed Justice Hand’s view of the First Amendment. Over the next 20 years, this would grow into regular correspondences between the justices and judicial philosopher and civil rights advocate Professor Zechariah Chafee, Jr., and go on to form the foundation of the modern First Amendment. Were it not for this accident of history, few of the First Amendment freedoms we enjoy and take for granted today would be protected. As New York Times v. Sullivan comes under increased criticism, do not take them for granted tomorrow.
At the end of the show, Ted called this “A precarious time.” A precarious time indeed.
“Success is not final, failure is not fatal: it is the courage to continue that counts.”
Enjoy the listen.