Gov. Scott Walker named Daniel Kelly (left) on Friday afternoon as the next state Supreme Court justice. He will fill a seat being vacated by Justice David Prosser, who is retiring.
It’s settled. Wisconsin’s newest Supreme Court justice is a man who believes affirmative action is as morally reprehensible as slavery and that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning.”
Waukesha attorney Daniel Kelly, who Gov. Scott Walker today named to fill a soon-to-be-vacant seat on the state Supreme Court, expressed these and other extreme views in a book chapter he submitted along with his application for the job.
Kelly, the only one of the three finalists to lack judicial experience, was said by Walker at a press conference late Friday to be an “extraordinary” lawyer and, in the governor’s estimation, “an excellent choice.” Wisconsin’s conservative chief justice, Patience Roggensack, agreed, saying Kelly “is going to be wonderful.”
Walker’s selection of Kelly requires no legislative confirmation. Kelly will fill the seat Justice David Prosser is leaving in mid-term and will continue the court’s 5-2 conservative majority. He will serve until 2020, the first year without a scheduled Supreme Court election, and can then seek a 10-year term.
At the press conference, Walker would not let Kelly answer a question about whether he intended to seek election in four years. The governor said that in vetting Kelly for the job, he never asked.
As Isthmus reported in late June, Kelly makes up for what he lacks in judicial experience with deep ties to conservative organizations and strongly held ideological positions that count as radical even among Republicans.
Kelly, 52, is the president of the Milwaukee Lawyer’s Chapter of the Federalist Society, a conservative legal group organized in opposition to what it calls “orthodox liberal ideology which advocates a centralized and uniform society.” He is the former vice president and general counsel for the Kern Family Foundation, a conservative philanthropic organization.
The governor, in making his pick, passed up two finalists who he had previously appointed state appeals court judges: Mark Gundrum, a former state lawmaker who served a stint in Iraq as a member of the U.S. Army Reserves and was elected as a circuit court judge, and Thomas Hruz, who formerly clerked for Prosser, taught at Marquette University Law School and was a research fellow at the conservative Wisconsin Policy Research Institute.
Kelly was the only one of 11 original applicants for the job who asked that his name be kept confidential unless he became a finalist, at which point state law requires disclosure. In his application for the position, Kelly included a lengthy chapter from a 2014 book, John Rawls and Christian Social Engagement: Justice as Unfairness.
After establishing that “all authority” derives from God himself, Kelly harshly attacks same-sex marriage and affirmative action programs that create racial preferences in employment, which he likens to slavery.
“Affirmative action and slavery differ, obviously, in significant ways,” Kelly conceded. “But it’s more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same….”
The chapter also delivers a blistering critique of the U.S. Supreme Court’s 2013 ruling striking down the Defense of Marriage Act, which had defined marriage under federal law to exclude same-sex partners. Kelly refers to accommodation of same-sex marriage as “coerced dignity” and laments legal actions brought against a photography company in New Mexico and baker in Colorado who refused to perform services for same-sex ceremonies.
“You will afford same-sex marriages the same dignity as heterosexual marriages,” Kelly writes mockingly of efforts to insist that businesses open to the public refrain from discrimination. “You will. If our governors are the source of our human dignity, fairness commands no less.”
Kelly also writes that the sentiments expressed in the court’s ruling on the Defense of Marriage Act, issued prior to its 2015 ruling striking down all state laws against same-sex marriage, “will eventually rob the institution of marriage of any discernible meaning. Fairness, as a substitute for justice, must always reduce to the least common denominator. By little and little, it will wear away marriage’s distinctives.”
At Friday’s press conference, both Walker and Kelly insisted that the new justice’s past writings and personal views would have absolutely nothing to do with how he does his job.
“The oath that I will take will guarantee to you that my personal political beliefs and my political philosophy will have no impact on me whatsoever,” Kelly said. “Those things simply have no place inside a court of law.”
When a reporter pointed out that Kelly included his writings about the law as it pertains to affirmative action and same-sex marriage in his application for the Supreme Court, Walker wouldn’t let Kelly respond. Instead, he jumped in to explain that writings were provided by applicants because his office asked for them in the spirit of “full disclosure.”
“I don’t want an activist judge for the left or for the right,” Walker said.
