A conversation with former Wisconsin Supreme Court Justice and candidate Dan Kelly
With a seemingly endless stream of commercials, text messages, and emails, often giving conflicting information, WUWM reached out to the candidates for the Wisconsin Supreme Court to set the record straight.
Former Justice Dan Kelly was originally appointed to the Wisconsin Supreme Court in 2016 by then-Governor Scott Walker. He had no previous experience as a jurist and has never been elected to the court. Kelly lost the 2020 Wisconsin Supreme Court election to current Justice Jill Korofsky.
Since then, he has worked as an attorney, most notably serving as legal counsel to the Wisconsin GOP. He joins Lake Effect's Joy Powers to explore his record and what's at stake in this election. Here is a partial transcription of that conversation:
Avoiding discussions of personal values and morals
Lake Effect's Joy Powers: Throughout your campaign, you've avoided talking about your personal beliefs and morals saying that personal values have “no place in the courtroom.” You've also said that you believe one of the most important parts of this election is “electing a person whose character you trust.” How can voters assess your character without knowing your personal values?
Former Wisconsin Supreme Court Justice Dan Kelly: Well, I think, by looking at what we've done in the past, so, as you know, I've already served as one of Wisconsin's Supreme Court justices. And so I think that they can get that the sense of my character as it relates to the work of the court by looking at the work that I've done. And that's one of the reasons I've, listed every single one of the opinions that I've ever written as a jurist on my campaign website ... I want the people of Wisconsin to be able to go there, look up the work I've done ... which is to resolve the cases that come before us according to the law as it exists. So, that's what we, that's what we are to be looking at for positions like this.
“Apply the law as it is written”
Powers: You've said, you want to apply the law as it is written, but that suggests in some ways that the law is perfectly written. And if that's the case, why would we need a Supreme Court?
Kelly: Well, the Supreme Court is there to apply the law. So it's not to make it, it's not to change it. It's not to view it through its own personal lens of what it ought to be. Now, that doesn't assume anything is perfectly written, and in fact, some of the hardest work we do is trying to figure out what the legislature said. So that's one of the reasons why we have that whole tool chest of disambiguation tools sometimes what the legislature says is not perfectly clear. So we have those tools in that tool chest to figure out the original public meaning of the text and we have those tools so that we, we don't insert ourselves into the process. So no part of the work of the court should be looking at personal opinions, personal values or personal preferences about what the law ought to say…
Powers: But you're suggesting that judicial interpretation isn't colored in any way by the personal experiences and beliefs of those making those interpretations.
Kelly: That's right, yeah. And it has to be that way…
Powers: If that were the case, wouldn't every competent judge rule the same way, then? If it's all written out, if it's all not based on an interpretation that is personal, wouldn't every single person rule the same way?
Kelly: Not necessarily. We're all human beings and we are prone to making mistakes. So that describes some of the variants. So it's one of the reasons why we have a Collegial court, right? And Collegial Court means a court of more than one person on the Supreme Court. And the idea there is we check each other's work and make sure that we are doing the best job possible of discerning what the meaning is. It doesn't mean that we're perfect and no human undertaking is perfect. So that explains some of the reasons, other reasons that jurors would not come to the conclusion is because they have different judicial philosophies… There are competing judicial philosophies…
Recusal and un-recusal in Wisconsin Supreme Court Case where plaintiff donated $20,000 to Kelly’s campaign
Powers: As a justice you recused yourself from a case involving election law just before an election where you were a candidate, the plaintiff and their family members gave you a large donation that was [collectively] more than $20,000… You decided to un-recuse yourself from this case, although you lost the election and never ended up hearing the case. People are calling this corruption, essentially a bribe. What are your thoughts on this accusation?
Kelly: … The fact of the matter is this, the case addressed, whether the Wisconsin election commission or local clerks had the authority to and the responsibility to clean up the voter rolls. So I looked at that and, and I figured, well, the resolution of that question could potentially affect an election in which I was a candidate and therefore clear conflict. And so I recused myself. Now the, the election came, the election went, and then the case came back before us on a petition for review. And so I looked at that and I figured, well, this case no longer has the capability of affecting anything in which I have an interest. So I wrote a letter to the parties and I explained the reason I originally recused and noted that that reason no longer exists and asked if anyone would have an objection to be participating in the case and no one objected…
Powers: Wouldn’t this donation have presented a new conflict of interest?
Kelly: Not at all. We received contributions from people all the time and as long as they're within the statutory limit, that's the limit that the people of Wisconsin have decided is acceptable for a Supreme Court justice to receive…
Powers: Were the litigants aware, all of the litigants aware of these donations?
Kelly: They're a matter of public record.
Powers: So they would have had to look it up, you didn't mention it to them?
Kelly: Well, I don't, I don't and no one does. No jurist ever goes back through the campaign finance records and, and says to every litigant that comes before the court, here are the campaign contributions we've received… the court has a provision in the code of judicial conduct that says that contributions to the candidate are not a basis for recusal.
Powers: As somebody who is not a lawyer who is not a judge or a justice that does sound like it's open to corruption that, that is allowing people to essentially bribe justices.
Kelly: Well, if you think that a justice is going to change their mind because of a $20,000 contribution to a campaign account, then you have a very, very low opinion of those who sit on the court. I don't think that anyone that I've served with on the Supreme Court, whether I agree with them philosophically or not, I don't think any of them would change their mind on anything based on a legal contribution to their campaign.
Powers: $20,000, that's a life changing amount of money for me.
Kelly: It is, but understand this, then, I think you have an incorrect understanding of what a contribution to a campaign means. That's not money that I get. That goes into a campaign account and it can be used for campaigning and campaigning only buying ads paying for flyers and whatnot.
Willie Horton ad
Powers: You recently ran an ad, that was almost a shot for shot remake of George H. W. Bush's 1988 Willie Horton ad. Now that ad, the original, has been roundly criticized as, being the epitome of racist political advertising. The ad that you made is so close, it even has kind of a V H s effect on it, kind of harkening back to that time. Why did you decide to make a remake of such a notorious ad?
Kelly: Well, because the graphics are attention getting, and it conveys, conveys a, a very serious concern about public safety issues, but I'm troubled by your suggestion that it's racist. What, in what possible regard would that be the case?
Powers: Oh, a lot of political scientists believe that the Willie Horton ad, the original ad… was race baiting, essentially. And to harken back to such an ad specifically, seems an odd choice considering its notorious reputation.
Kelly: Well and of course, we didn't, we didn't do anything in the ad that would have any reference to any race whatsoever.
Powers: It just seems an interesting choice to remake an ad that is known for that [being racist].
Kelly: Well, it's also known with, for pointing out, the problems that occur with public safety when we don't take crime seriously and that's the reason that we used that. Now, if your conclusion is going to be, that you're going to concentrate on the racial aspects of the original ad, well, I can't help that. But that's not what we did with the ad.
Wisconsin Right to Life endorsement
Powers: When the Wisconsin Right to life Political Action Committee announced it was backing your candidacy, it said it only endorses candidates who, “have pledged to champion pro life values and stand with Wisconsin right to life's legislative strategy.” Now, you've said previously that was inaccurate and Wisconsin right to life has tried to walk that back. But as a lawyer, I'm sure you can appreciate the initial wording is pretty unambiguous. Why would they say that you made that pledge when you claim you have it?
Kelly: Well, they didn't say that.
Powers: That’s what the email said.
Kelly: This is, okay, so when they say that they endorse people who support their legislative agenda, they're referring to legislative endorsements.
Powers: Oh this was specifically in the email about you.
Kelly: So judicial endorsements, judicial endorsements are different and the conversation that I had with them is the same I have with every other organization who supports my campaign. And that conversation is, here's who I am as a jurist, I understand our responsibilities is to answer legal questions, not political questions… And if they have, unfortunate wording in their announcement of the, endorsement, well, then I can only hope that they'd be a little bit more careful about what they say. But as far as the actuality of the conversations I have with them, it is entirely about the work of the court and not with respect to any legislative agendas.
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