Gov. Scott Walker is giving serious consideration to appointing a Milwaukee lawyer to replace retiring Supreme Court justice David Prosser when he leaves the bench this month, the Wisconsin State Journal has learned.
Daniel Kelly, a longtime lawyer and one of three finalists for the governor’s appointment to the high court, has emerged as a dark horse possibility for Walker over finalists Mark Gundrum and Thomas Hruz, both state appeals court judges, five Republican sources told the Wisconsin State Journal. Conservatives had been expecting Walker to choose Gundrum.
All five sources who spoke with the State Journal asked not to be identified because they had not spoken directly with the governor about the appointment.
The emergence of Kelly as a possible choice was underscored Wednesday when Rick Esenberg, a prominent voice in conservative circles and president of the conservative legal group Wisconsin Institute for Law and Liberty, wrote a column published on the conservative website RightWisconsin about why Walker might choose Kelly over two sitting judges.
Kelly, Grundrum and Hruz were named by Walker’s office as the three finalists for a seat on the state’s highest court earlier this month.
“We’re not going to engage in the guessing game,” said Tom Evenson, Walker’s spokesman, in an email when asked whether Kelly was Walker’s choice. “You’ll know who the governor selects when we announce it.”
Kelly declined to comment. Gundrum said he had not heard anything and Hruz declined to comment through an office assistant.
The governor has said he will make the appointment before Prosser leaves the court on July 31.
While he has a lengthy resume as a lawyer handling commercial litigation, Kelly has not served as a judge, which could make him a more unconventional choice.
Kelly, founder of the Rogahn Kelly law firm, also is president of the Milwaukee chapter of the conservative Federalist Society for Law and Public Policy Studies and former vice president and general counsel for the Kern Family Foundation, which has donated money to Republican candidates and causes.
He also acted as an adviser to Justice Rebecca Bradley during her tough election bid against state appeals court judge JoAnne Kloppenburg earlier this year.
Kelly, like Bradley, 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.
Bradley, Kelly and Milwaukee attorneys Don Daugherty and David Simon said in the column that a pledge put forward by the State Bar of Wisconsin’s Judicial Campaign Integrity Committee shouldn’t be signed by candidates because it infringes on free speech.
In his column outlining Kelly’s qualifications, Esenberg noted Supreme Court Justice Shirley Abrahamson — who served as chief justice for nearly 19 years — had not previously been a judge before she was appointed to the court in 1976.
“He is known as a ‘lawyer’s lawyer’ – one who thinks deeply about the law as a discipline and about its role — and limits — in resolving economic and social problems,” Esenberg said of Kelly.
“This ability to engage in sophisticated legal reasoning is by far the most important qualification for the Court whether it is found in a sitting judge or practicing lawyer.”
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