Here & Now

Daniel Kelly on the 2023 Wisconsin Supreme Court Race

FREDERICA FREYBERG:
The Wisconsin Assembly Thursday gave final passage to sending a constitutional amendment to voters in April. A measure that would make it harder for violent criminals to get out of jail on bail. It would require a judge to consider a defendants potential risk to public safety, including their criminal history. Currently cash bail is set only to ensure that the person appears in court.

The New York Times calls the race for Wisconsins high court arguably the most important election in America in 2023. Two conservatives and two liberals face off in a primary February 21, and two will move on to the general election April 4. The winner will determine the ideological balance of the court going forward. Here & Now senior political reporter Zac Schultz brings us in-depth interviews with each candidate over the next month. First up, 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:
Constitutional conservatism is that commitment to the original public meaning of that document and faithfully following that in every single case that we decide.

ZAC SCHULTZ:
Does that ever run into challenges when you dont have specific legislation to follow? You dont have the specific history of court decisions to follow, and you kind of have to break new ground as the court is sometimes required to do?

DANIEL KELLY:
Yeah, so what we do when were breaking new ground, when we say that, were taking principles that already exist, texts that already exists, whether its in the Constitution or in the statutes, and were applying it to new situations. So in that sense, it might be breaking new ground but we never break new ground in law. So we know from looking at the Constitution, Article 4 of our Wisconsin Constitution says that the legislative power is loaned to the Assembly and the Senate. And, you know, it doesnt say the Senate and Assembly, and also when Dan Kelly thinks hes got a great idea for new law, right? Its only the Legislature that gets to make our law. So even in novel circumstances, were always going to go back to the text of the law, whether its the statute or its the Constitution, and were going to apply that meaning to resolve the case. But if we ever get in a position of importing our personal preferences or our personal politics, thats poison to the work of the court, that destroys the constitutional order, and thats why its so important to set that aside, set aside all those personal preferences and policies, and just decide cases based on the law.

ZAC SCHULTZ:
You mentioned the poison at the forum last week, and you talked about it in reference to some of the comments you heard some of your opponents making. When you hear some of those public comments, how much of that comes across as virtue signaling to an audience, to voters, as opposed to how someone may apply the law from the bench?

DANIEL KELLY:
Yeah, I mean, its conceivable that certain candidates might use that as virtue signaling, and then others would use it just as this is how Im going to decide cases. Heres the problem with both of them. So if you are if you think as a candidate that you should be virtue signaling to attract the votes of a certain body of Wisconsinites, what youre telling them is that you are not you are not committed to the constitutional order, and youre telling them that the politics should have a role in the court, even if you dont intend to follow through on that, what youre telling the voters is that it should have a role, and I think thats extraordinarily problematic because when people come in to this room so that the court can hear their case, what people of Wisconsin want to know, with absolute certainty, is that everyone on that bench is going to follow the law. They dont come in here and say, you know, to one of the justices, I want to know what your values are. I want to know what you think the law ought to be. They dont say that. They say follow the law and that is the commitment that we are to make, not only in fact, but in appearance, too.

ZAC SCHULTZ:
How do voters distinguish between that which they would probably largely agree with, and who you were appointed by, who campaigns on your behalf, when you appear at a campaign rally and your personal behalf as opposed to representing the court? How can the public draw the distinctions between that and what they may see on their screen?

DANIEL KELLY:
Yeah, so I think the best way that people can get a sense, because I talk to people in a variety of settings, and theres hardly anyone that I wont talk to. I mean, you know, Cubs fans. I wont talk to them. Everybody else, Ill talk to. So that might occur in a political context. It might occur in a community context. It might occur in a community of faith. It could occur in a whole variety of circumstances. And I think its important that the members of the court are committed to talking to people from a broad array of backgrounds, and so Im committed to that. Now, the way that they become confident that I set aside my politics and my preferences is by reading my words. So I wrote every single opinion when I was on the court. I wrote it with an understanding that the authority I was using was borrowed from the people, and that each opinion I wrote was really a report to them on how I used their borrowed authority. And so I wrote it in each of those opinions in a way that its accessible to anyone. You dont have to be a lawyer to read and understand the opinions that I wrote, and I think that was important because of this very question, because they need to be confident that the members of the court, that theyve loaned their authority to, are just deciding the cases based on the law.

ZAC SCHULTZ:
When you look at the people talking about what the next court will address, there are a lot of people framing this election around a redistricting court coming back, or a redistricting suit coming back, or the abortion 1849 law coming to this court. What do you think of the idea that some people will be going to vote based on whether they want to see certain outcomes in certain decisions and thats how theyre going to choose their justice?

DANIEL KELLY:
I think that would be really unfortunate. If I could encourage our fellow Wisconsinites just one thing in this race, is to make a decision on who you believe will be the most faithful to the law, not to the not to the results that you want, but to the law. And just if I could just address this as a practical matter, just for a moment, there might be an issue or two issues that youre really passionate about, and you really want it to come out a particular way. And so you say, Im going to go and find a justice who will promise me that hell vote or shell vote in this particular way on this issue. I think thats a dangerous place to go, because if you find a candidate who will promise you that they will vote in a particular way on your favored issue, that kind of justice is also going to be taking politics into account in voting on every other issue because judicial activism versus constitutional conservatism, its an all or nothing thing. You either believe that you can bring your politics into the court and make decisions based on that, or you dont.

ZAC SCHULTZ:
Its fascinating you mentioned the looking to the courts to solve a political problem because theres a lot of people who will say thats just what the Dobbs decision was with the U.S. Supreme Court, that that was conservatives looking to a conservative court to solve a political issue. What is your opinion of the Dobbs decision?

DANIEL KELLY:
So I dont want to speak directly to it. You know, the issue of abortion is very likely to come to court, to this court. I understand theres already a lawsuit that challenges an early version of the statute, and interestingly enough, the claim there its been a while since Ive looked at the pleadings, you never know, might have been amended, but when I originally looked at them, there was no claim of unconstitutionality. They simply said that there was a subsequent statute that overrules the prior statute. And so really the constitutional element or the question is not coming to the court any time soon, although that is certainly a possibility down the road. So Dodds simply opened up the possibility for this to be addressed at the state level, and I think thats all it did.

ZAC SCHULTZ:
How much has this race changed versus the 2020 race in terms of national attention, state attention, peoples awareness of what the court means in their lives?

DANIEL KELLY:
I think it has gotten a higher profile, and that in and of itself, I find somewhat regrettable. When the court gets a higher profile, what that suggests to me is that there are forces that are trying to elevate its position in the constitutional order to be in a position that its not supposed to be in. And so, you know, a lot of what I hear is that there are issue advocacy groups that are going to spend a lot of money in this race because they want, frankly, one of my one of my opponents, maybe two of my opponents who are talking about their values and what theyre going to bring to the court as rules of decision. And these interest groups are latching on to that and saying, yes, thats what we want. We want someone on the bench whos going to bring these particular politics to the work of the court to import that poison into the judicial process. We want that and what Ive heard is theres going to be a lot of money that is going to come in to support that.