In his comically disingenuous Washington Post op-ed today, "How I know Kagan isn't anti-military," Walter Dellinger claims:
On the basis of this unremarkable application of an established anti-discrimination policy, Kagan has been accused of harboring an "anti-military" animus. Some critics have falsely equated Harvard's anti-discrimination policy with the anti-military and anti-ROTC policies favored by some campus leftists in the 1970s. Those policies, however, were categorically different: They were directed at the military. In contrast, the anti-discrimination policies applied before, during and after Kagan's tenure as dean were in no way intended to single out the military but were applied in an evenhanded way to all prospective employers.
Leave aside that no other prospective employers seem to have been affected by Harvard Law School's discriminatory "anti-discrimination" policies, and that all the rhetoric and argumentation around them singled out the military as the object of their application.
What's striking here is Dellinger's throwing under the bus "the anti-military and anti-ROTC policies favored by some campus leftists in the 1970s." But these policies weren't just favored by a few flakes in the 1970s. They are in place on major campuses today--at Harvard, for example, where ROTC is denied official recognition.
So: If Dellinger is now opposed to such anti-military and anti-ROTC policies, I assume he'll use his considerable prestige to weigh in against them. If Kagan agrees with Dellinger that anti-ROTC policies on campus are indefensible, then I assume she'll say so at her hearings. Indeed, perhaps it will even turn out she spoke against them as Dean of Harvard Law School, since her deanship coincided with a period of considerable controversy about them at Harvard. Or perhaps she didn't.
And perhaps Congress should take a look at extending the Solomon Amendment to apply to discrimination against ROTC, not just discrimination against recruiters, on campus.