You’re either for or against the military we have

Robert Merrill is a captain in the Marine Corps. He fought in Iraq and currently serves as a legal adviser to a Marine infantry batallion in southern Afghanistan. In between, he attended and graduated from Harvard law school.
Writing in the Washington Post, Merrill defends Elena Kagan from charges that she is anti-military. He argues that Kagan’s discriminatory treatment of military recruiters at Harvard didn’t impair military recruitment. And he recalls that Kagan hosted a Veterans Day dinner for vets every year.
Merrill clearly is a true patriot and he deserves great credit for his service. I have two additional observations, however.
First, it’s unfortunate that we’ve reached the point where the military feels constrained to have a legal adviser serving in a Marine infantry batallion. I hope that the actions of this batallion are based solely on military considerations such as killing the enemy and protecting the lives of our forces, as opposed to legal advice.
Second, Merrill’s defense of Kagan is not persuasive. Suppose a law school dean treated recruiters from the NAACP Legal Defense Fund less favorably than all other outside recruiters. Would it be a defense to say that the Fund was still able to attract recruits and that the dean invited African-American students to dinner on Martin Luther King’s birthday? Of course not.
Merrill also overlooks the fact that Kagan violated the Solomon Amendment, the federal law requiring universities that accept federal money to grant military recruiters the same access as other recruiters.
Merrill, I assume, is correct that Kagan likes and respects individual members of the military. And she would probably be perfectly okay with a military that conducted itself in accordance with her political and social preferences. But Kagan was hostile to the military we have and, more importantly, treated it less favorably than the law allowed it to be treated.

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