Gorsuch, “Fascism Forever,” and his troubling Kissinger quote

Last night, I posted that Gorsuch wrote brilliantly for the rule of law and deserves our open minds. This morning, I am feeling naive and nauseous. Overnight, the Daily Mail published photographs of Neil Gorsuch’s Georgetown Prep yearbook showing that he founded and was president of the “Fascism Forever Club” for three years (10th through 12th grades). [Update 8pm: There are plausible explanations and denials, that it was not a real club but just an entry in his yearbook and a joke article about it. But as I had written below, I was initially more troubled by the 21-year-old’s embrace of the Kissinger quote anyway.]

But wait, that’s not even the worst revelation. Gorsuch also added a quote to the high school yearbook from Henry Kissinger: “The illegal we do immediately. The unconstitutional takes a little longer.” He loved this quote so much that he used it again in his Columbia yearbook in 1988.

Let me first say that I want to allow some time for confirmation of these stories and some kind of response. But we should focus even more on the Kissinger quote because its content has been confirmed by other sources, it is more obvious and relevant, the source (Kissinger) is troubling in precisely the ways we should be troubled in 2017, and Gorsuch quoted it repeatedly, at an age when we all expect more maturity. Snopes confirmed the Columbia yearbook already. The quote may come from Gary Allen’s book Kissinger in 1976. Someone excerpted quotes from Gary Allen’s book online for a little more context: “He was the man who said ‘power is the ultimate aphrodisiac,’ and who was quoted in New York Times magazine as joking, “The illegal we do immediately. the unconstitutional takes a little longer.” The Washington Post published this quote in 1973. Kissinger has been quoted elsewhere saying, “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately. The unconstitutional takes a little longer.’ … But since the Freedom of Information Act, I’m afraid to say things like that.”

Frankly, I’m astonished he would advertise these views so openly. It’s as if a 21-year-old were intentionally trying to sabotage his own nomination to the Supreme Court thirty years later, like he couldn’t help but confess, “I have a long-term plan to undermine the U.S. Constitution just like Nixon and Kissinger.” (Didn’t Nixon and Kissinger love “secret plans”?) On the one hand, there is something frankly refreshing that he was not plotting his ambitious political career so carefully as a teen and 20-something (maybe we need to worry more about those types). I suppose I should be relieved that he isn’t a totally stealth fascist. But decent people don’t behave like this, especially not as 20-somethings. As college students, we knew who Kissinger was. Even if you admired his hawkish successes, you surely knew about his bombing campaign in Cambodia and the allegations of war crimes, and you probably knew of his interventions for dictators in Latin America. Decent people don’t celebrate Kissinger’s bragging about lawlessness on the pages of everyone’s yearbook.

Given that we have a president who threatens illegal and unconstitutional actions similar to Nixon and Kissinger (or worse), we all should worry that the 49-year-old Gorsuch might be same person as the 21-year-old Gorsuch. I believe we ordinarily need to keep an open mind about stupid, offensive things people did when they were teens. However, these are not ordinary times, and this is not a nomination for an ordinary position. It’s a lifetime appointment for a relatively young nominee to the Supreme Court of the United States. This is a thirty or forty year commitment to someone who would have enormous power and no accountability. Did we all do stupid things when we were 16 or 18? Of course. Did we tell offensive jokes? Of course. But that’s a reason to give people a second chance. This isn’t a second chance. This is locking him into extraordinary power for the rest of our lives with no second chance for the rest of us.

Update: A Georgetown Prep teacher says there was no club, it was just an inside joke. http://www.thedailybeast.com/cheats/2017/02/02/scotus-pick-s-teacher-no-fascist-club.html?via=mobile&source=copyurl

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I'm working on the Emoluments litigation against Trump, as well as a history of prosecutors and American politics, and another project on the origins of "independent agencies" in America.

2 thoughts on “Gorsuch, “Fascism Forever,” and his troubling Kissinger quote”

  1. You see what you want. When I first read the quote, I laughed-out-loud. I don’t think he supports Nixonian actions, he’s just cynically pointing out brazen abuse by the powerful. Not that shocking for a 21 year old.

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