Here & Now

Daniel Kelly on the 2023 Wisconsin Supreme Court Election

Frederica Freyberg:

There are just days before the statewide spring election this Tuesday, April 4. As part of our “Here & Now” 2023 election coverage, we hear from both campaigns one last time, making their final appeals to voters. Up first, candidate Daniel Kelly, who previously served on the Wisconsin Supreme Court. Kelly was appointed by Republican Governor Scott Walker in 2016. He ran for re-election in 2020 and lost, but says he is running again as a constitutional conservative. Daniel Kelly, thanks very much for being here.

Daniel Kelly:

It is a pleasure. Thanks so much.

Frederica Freyberg:

I wanted to ask you, first, what are the stakes in this election?

Daniel Kelly:

Well, I think it’s the difference between the rule of law and the rule of Janet. She’s made it abundantly clear that, if elected, she intends to place herself above the law. She’s made it public that she subscribes to a judicial philosophy known as living constitutionalism. The idea behind that is that the courts have the power to amend what the statutes and the constitutions say and that’s certainly not the way that our form of government is set up. Those changes happen through the conversations of the people of Wisconsin with their legislatures. Our job is really very humble. Our responsibility is simply to use the existing law to decide the cases that come before us, and that’s it. And people of Wisconsin have told us that they’re not really interested in what we think about the laws, whether they’re good or useful. They say reserve those conversations for the Legislature. So the question is, are we going to continue with our 175-year tradition with our Wisconsin Constitution or are we going to trade that in for someone who believes that she can be above the law?

Frederica Freyberg:

Your challenger calls you a “threat to democracy” for having, “extensive conversations with the head of the state Republican Party and others about the false elector scheme.” When she said that in the debate, you called her a liar.

Daniel Kelly:

Yes.

Frederica Freyberg:

And yet the transcript of the Andrew Hitt deposition quotes him as saying about yourself and another GOP lawyer: “Mr. Olsen and I and another lawyer, Mr. Kelly, had some pretty extensive conversations.” So how is what she said a lie?

Daniel Kelly:

Because, as you properly know, he’s referring to multiple attorneys, so if you go onto the transcript, he says that he had one conversation with me, so the extensive conversations were obviously with the other lawyer. So if she had been careful with her homework, she would have been able to avoid that. Now, here’s the thing. I think she knows, and I think she just intended to lie because she wants to make it look bad. So what the congressional testimony shows is that I had one conversation with a client about this subject. He asked if I was in the loop on that question. I said I wasn’t because I wasn’t and that was it.

Frederica Freyberg:

That was the end of your involvement?

Daniel Kelly:

That was the end of my involvement.

Frederica Freyberg:

Your attack ads against your opponent have focused on her sentencing decisions as a judge in criminal cases. But why, when the Supreme Court doesn’t sentence defendants, is this relevant?

Daniel Kelly:

Because of something Alexander Hamilton said 235 years ago when he was writing about the way our Constitution works, the United States Constitution, he said courts have neither have the power of the purse nor the sword, but merely judgment. And so we look at jurist judgments to find out how they actually use their authority. One of the areas where, if you’re a circuit court judge, one of the areas where your judgment becomes most apparent is in criminal sentencing, and so we go there because that’s where trial judges have the greatest discretion. So you can really get a glimpse into their juridical mind by looking at their judgments and how they sentence. So we look at that and what we find there is really pretty chilling.

Frederica Freyberg:

She says you’re cherry picking those cases.

Daniel Kelly:

Well, they keep coming out day after day after day and that list is getting pretty darn long. I don’t know when cherry picking stops and a pattern starts, but I think we’re well into pattern.

Frederica Freyberg:

You both promise to follow the law in deciding cases. Why would your endorsement from anti-abortion groups and your former legal work for them not hinder your impartiality and yet Janet Protasiewicz is making her view supporting abortion rights public would hinder her ability?

Daniel Kelly:

Yeah, so here’s the difference. So obviously, you have to be an attorney to be on the Supreme Court. My work as an attorney has represented people all across the political spectrum with all kinds of different interests and so when I have conversations with individuals who are thinking about endorsing me, the conversations are the same regardless of who I talk to. It is the same conversation everywhere, and it is this. I understand the role of the court is simply to apply the existing law without reference to our political opinions or our political views. Now in order to do that, to effectuate that, to live it out on the bench, you have to have a system for doing it. And so here’s my system. So I start with the law. In any case I analyze or any opinion that I write, I start with the law applicable to that case, whether it’s a constitutional provision, statute, regulation, common-law, whatever it might be, and then I use rigorous logic to move from those propositions all the way down to the conclusion, and when you’re done, you should be able to see an unbroken chain of logic between the conclusion and the premises, and that’s your guarantee the conclusion is commanded by law and is not infected by personal politics.

Frederica Freyberg:

Some states are saying parents can be investigated for child abuse if they help their transgender child transition. In your opinion, would such a policy be legal if enacted in Wisconsin?

Daniel Kelly:

That’s a great question. We start with how you described it, a policy. In the court, we don’t determine whether policies are good or bad or warranted or not.

Frederica Freyberg:

Legal?

Daniel Kelly:

We question — we examine whether they’re legal. Now, whether it’s legal will depend entirely on the language of the statute. So our job, when challenges come to us on statutes, we look carefully at the words of the statute, we compare that to the constitution, and if it’s consistent with the provisions of the Constitution, we apply that. And if it’s not, we prefer the constitution over the statute. So the answer to the question is, we have to see the statute.

Frederica Freyberg:

Given an onslaught of attack ads in this race, what is the one thing that you would like to refute?

Daniel Kelly:

All of it. I mean, honestly. This is, this is just a pattern of lying. My opponent is a serial liar. Every single time she puts out an ad about me, it’s just a lie. And what I mean by that it’s not a taking out of context, it’s not spinning. It’s just a lie. She is making things up. So there’s not enough time in the afternoon to refute all of that. What we can do is this. On my campaign website, JusticeDanielKelly.com, that’s JusticeDanielKelly.com, at the top, there’s a fact check tab and we’re compiling all of my opponent’s lies and telling the truth about each one of them. I think this is important because, one, I think it is really bad character to be a serial liar running for the Supreme Court of Wisconsin, but I find this personally terribly, terribly offensive. Maybe I should have a thicker skin about this, but on that, I don’t. That’s partly because of how I was raised, that you don’t lie. And also because of this: when I was growing up, our family didn’t have a whole lot. I had three brothers and three sisters and my mom and dad had to stretch every dollar pretty far to get from month to month. I still remember when I was a teenager, my dad sat me down one day and he says, “Dan, when I’m done with this life, I’m not going to have a lot to leave you, but I’ll make you this promise. I will leave you a good name.” Now, when I graduated law school a year later, his comments came to pass, and he didn’t have much to leave me. A couple of cufflinks and a broken pocket watch. But he left me a good name, and I have treasured that my whole life. It’s been my goal to hand down that good name to my children and now I’ve got a serial liar like Janet Protasiewicz out there trying to trash my father’s legacy. I think that is just inexcusable.

Frederica Freyberg:

Daniel Kelly, thanks very much.

Daniel Kelly:

Thank you, I appreciate it.