Dan Kelly’s Ideology Is 100% Relevant

Daniel Kelly. Photo from the State of Wisconsin Blue Book 2017-18.

In his March 23, 2020 “Contrarian” opinion piece, George Mitchell did not fully quote the questions I posed to him on Facebook a few weeks ago. Here’s what I asked:

Why does [Dan Kelly] always vote in favor of the positions taken by the Wisconsin Institute for Law & Liberty? I am curious about this question: Why did Scott Walker appoint him to the court? It could not have been [Kelly’s] trial experience or stellar record as a judge because he was never a judge before he was appointed. What distinguished [Kelly] other than the fact that he would be a sure vote for the Walker agenda and do the bidding of the Bradley Foundation and WMC?

Mitchel never answered those questions despite the fact that the answers were simple, even for him.

Dan Kelly was appointed by Scott Walker, not because Kelly had outstanding qualifications. Rather, he was the most radical right-wing lawyer Walker could scrounge up. Kelly once wrote that Barack Obama’s re-election in 2012 was a win for the “socialism, same sex marriage, recreational marijuana, tax increase crowd.” He also wrote that social safety net programs such as Social Security were akin to slavery. Views like those made him Walker’s darling.

In his election campaign, Kelly has been repackaged by his supporters and is being sold to the voters like this:

Why, schucks, he’s just a “call ‘em as he sees ‘em” dispassionate interpreter of the law as it is written: a textualist. It does not matter to him what previous judges may have said. He reads a law and know exactly what it means just by looking at the words. He brings no ideology to his decisions. His political beliefs are 100% irrelevant to his decisions.

That poppycock can be summed up in this phrase “Who are you going to trust, me or your lying eyes?”

The fact is that Kelly has consistently voted in favor of every position taken before the Wisconsin Supreme Court by the right-wing Wisconsin Institute for Law & Liberty (WILL), an organization which some refer to as the legal arm of far-right Bradley Foundation. And, by the way, Kelly previously served on the advisory board of WILL.

There is a real and present danger in electing Dan Kelly to the Wisconsin Supreme Court. In 2021, the Legislature will have to do redistricting based on the 2020 census. In 1964, the Wisconsin Supreme Court decided that redistricting has to be done by a statute that is subject to gubernatorial veto rather than by a joint resolution that cannot be vetoed. Because there is now a Democratic governor, a gerrymandered map that favors Republicans will be vetoed. So, the Republican Legislature will radically gerrymander like it did in 2011 but it will do so by a joint resolution. Then WILL will bring a case directly to the Wisconsin Supreme Court demanding that the court refuse to follow the 56-year old precedent and uphold the Legislature’s action.

Dan Kelly was placed on the court by Scott Walker because Kelly already knows what he is supposed to do when such a case comes before him: vote to maintain Republican political power. And that is precisely why he should not be elected for a 10-year term.

Madison lawyer Lester Pines has practiced law for 46 years in state and federal trial courts, appearing many times before the Wisconsin Court of Appeals, the Wisconsin Supreme Court and the 7th Circuit Court of Appeals.