Rebecca Bradley will be sworn-in Monday, to a new ten-year term on the Wisconsin Supreme Court. Voters elected her in April, after the governor had appointed her a few months earlier.
But there will be an even newer face on the court. Waukesha Attorney Daniel Kelly will succeed Justice David Prosser – who retired Sunday. The change retains the court’s conservative bent, 5-2. Some observers are pleased while others are concerned.
Gov. Walker touted Daniel Kelly’s credentials a few days ago, when appointing him to the Wisconsin Supreme Court.
“I want people who understand the law and certainly that’s the case here, someone who’s very well respected for his knowledge of the law both in practice, having practiced in multiple areas,” Walker says.
Opponents of Kelly’s selection point to some of his writings. For instance, in 2014 he published his opposition to same sex marriage and likened affirmative action to slavery. Milwaukee Circuit Judge Joe Donald thinks the writings may catch up with Kelly, if cases related to those topics come before the court.
“I would have concern if I had a case involving those factors and obviously he has voiced his opinion. Although he says that he will strictly construe the law, he’s already indicated that he has certain predilections against gay marriage and against affirmative action,” Donald says.
Donald ran for a seat on the state high court this past spring, but lost in a three-way primary. He wonders if Kelly would recuse himself, if the court takes up cases related to same sex marriage or affirmative action.
Former Wisconsin Supreme Court Justice Janine Geske does not foresee the writings hurting Kelly. She notes that the Democratic nominee for Vice President – while not a judge, found himself in a similar situation. He had to impose the death penalty.
“Tim Kaine, who talks about the fact that he personally was against the death penalty, but yet he understood that if he took on the governor’s role, he had a role and he had to abide by the law. The same is true for Supreme Court justices,” Geske says.
Geske says it doesn’t appear that any cases related to same sex marriage or affirmative action are on the horizon in Wisconsin’s court system. But, the state high court could take up one major issue left over from divisive times in the Republican-controlled Legislature. Several labor unions are challenging the Right to Work law that leaders passed. Attorney Rick Esenberg says the job of the Wisconsin Supreme Court is to resolve uncertainty in the law.
“One very important quality in a Supreme Court judge is to be a good book lawyer, that is someone who is very gifted at legal analysis,” Esenberg says.
Esenberg has supported Kelly’s appointment. The new justice will serve at least until 2020, and then must decide whether to run for a full 10-year term.