Gov. Scott Walker has picked Daniel Kelly — a conservative Waukesha lawyer who has built a lengthy career in commercial litigation — to join the state Supreme Court.
Kelly, who will replace retiring Justice David Prosser when Prosser leaves the bench at the end of July, has been an ally to Walker in the courtroom and faced questions Friday about opinions he published comparing affirmative action to slavery in moral principle and decrying the legalization of same-sex marriage.
Like Prosser and former chief justice Shirley Abrahamson, Kelly comes to the bench without any judicial experience but has an “undefeated track record” appearing before the Supreme Court, which Walker noted in a press conference touting his appointment.
“You have a nice mix of different perspectives and different backgrounds,” Walker said of the justices’ backgrounds. “The extensive experience that attorney Kelly has both in the court of appeals process and before the Wisconsin State Supreme Court, as well as work at the federal level, (makes him) very well-positioned.”
Kelly represented state Republicans in a federal trial over a lawsuit challenging the 2010 redrawing of legislative districts and has ties to the Wisconsin Institute for Law and Liberty, which has helped defend Act 10, Walker’s legislation that all but eliminated collective bargaining powers for most public employees.
The Wisconsin State Journal first reported Wednesday that Walker was giving serious consideration to Kelly even though many conservatives thought he would pick another finalist, state appeals court judge Mark Gundrum.
Kelly is a more unconventional choice for Walker over the other two finalists who have judicial experience: Gundrum and fellow state appeals court judge Thomas Hruz.
Kelly’s 18-year career was spent defending clients that were mostly “manufacturers, developers, investors, regional/national/worldwide financial institutions, professional services corporations and technology companies,” he said in his application for the Supreme Court appointment.
Kelly was the one candidate who requested his name be kept confidential among the 11 applicants for the seat. Kelly was a reference for Walker’s most recent Supreme Court selection, Justice Rebecca Bradley, and helped with her recent campaign against state appeals court judge JoAnne Kloppenburg.
Kelly also founded his own law firm in 2014 and was previously vice president and general counsel for the Kern Family Foundation, a conservative philanthropic organization that has donated millions to conservative groups, according to IRS records.
According to campaign finance records, Robert and Patricia Kern — who founded the foundation — also donated $220,000 to Walker’s gubernatorial campaign since 2012.
Before starting his own firm, Kelly was a lawyer for 15 years with Reinhart Boerner Van Deuren. He received his bachelor’s degree in political science and Spanish from Carroll University and his law degree from Regent University in Virginia, the college founded by televangelist Pat Robertson that bills itself as a “global center for Christian thought and action.”
Kelly, like Bradley, also wrote a column published in the Milwaukee Journal Sentinel in 2008 that urged candidates for the state’s highest court not to sign a so-called clean-campaign pledge pushed by the state bar association.
In 2014, Kelly wrote in “John Rawls and Christian Social Engagement: Justice as Unfairness” that slavery and affirmative action were, under the law, morally the same. He said both institutions “spring from the same taproot” and that “neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship.”
Kelly also has publicly disavowed same-sex marriage.
When questioned by reporters during Walker’s press conference, Kelly said it is not appropriate for Supreme Court justices to discuss personal or political opinions and that they have no role in his job as a justice.
“The role of the courts is separate and apart from our roles as individuals in our society,” Kelly said.
When pressed, Walker would not allow Kelly to personally answer any questions about the writings he cited in his application for the appointment as evidence of his judicial philosophy.
Democrats criticized the pick.
“Since his graduation from Pat Robertson’s Regent University School of Law, he has had an unremarkable legal career with no judicial experience whatsoever,” said Rep. Dana Wachs, D-Eau Claire. “What Kelly does have, however, is decades of work advancing conservative and Republican legal causes, and I suspect that is the only qualification that Gov. Walker was looking for.”
“Wisconsin citizens want a justice they can trust to apply the law equally and without prejudice,” he said. “Dan Kelly most certainly does not inspire confidence in this regard.”
Rick Esenberg, WILL’s president and general counsel, praised Kelly.
“He is a very bright, capable attorney who believes in a judiciary that interprets the law objectively, fairly, and follows where the law might lead,” Esenberg said. “His experience unquestioningly qualifies him for the Supreme Court where reason and sophisticated legal analysis guides public policy affecting nearly 6 million Wisconsinites.”
Esenberg this week hinted at the appointment of Kelly in a column published on the website Right Wisconsin. He pointed out that longtime Chief Justice Shirley Abrahamson also had no judicial experience before she joined the bench.
Prosser’s retirement is effective July 31, and Kelly will take his place the next day. The appointment does not require legislative approval.
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