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Wisconsin Supreme Court candidate Daniel Kelly decries 'judicial activists'

At the same time, the Republican candidate has spoken out against same-sex marriage and accused pro-choice organizations of seeking to ‘preserve sexual libertinism.’

By Matt Cohen - January 24, 2023
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Then-Wisconsin Supreme Court Justice Daniel Kelly speaks during oral arguments in 2019AP559, League of Women Voters v. Tony Evers at the Wisconsin State Capitol in Madison, Wisconsin Wednesday, May 15, 2019.
Then-Wisconsin Supreme Court Justice Daniel Kelly speaks during oral arguments in 2019AP559, League of Women Voters v. Tony Evers at the Wisconsin State Capitol in Madison, Wisconsin Wednesday, May 15, 2019. (Steve Apps/Wisconsin State Journal via AP)

When former Republican Wisconsin Gov. Scott Walker picked Daniel Kelly to fill a vacancy on the Wisconsin Supreme Court in 2016, he said that Kelly’s “extensive real-world experience, combined with his intellect and integrity, make him well-suited to be an influential member of the Court.”

Kelly’s influence on the state’s highest court was short-lived.

Walker picked Kelly, a self-described constitutional conservative, to serve the remainder of retiring Justice David Prosser Jr.’s 10-year term; Kelly ran for full term in 2020 and lost to liberal Dane County Circuit Court Judge Jill Karofsky, who beat him by more than 10 points.

Now, Kelly, who, prior to his appointment in 2016, had never sat on the bench, is seeking to return to the Wisconsin Supreme Court. And this time he’s backed by a network of conservative billionaire donors, controversial right-wing think tanks, and dark money groups.

According to the right-wing Badger Institute think tank’s website, Kelly’s legal career in Wisconsin began in 1991, after he graduated from Regent University School of Law in Virginia and clerked for Wisconsin Appeals Court Judge Ralph Adam Fine. He then worked for the U.S. Court of Federal Claims in Washington, D.C.

According to his LinkedIn profile, Kelly worked from 1998 to 2013 at a Milwaukee-based law firm that represents a variety of corporate, business, and political clients. In 2013, he worked for the Kern Family Foundation, a conservative education policy nonprofit, as the vice president and general counsel, according to his LinkedIn profile. He formed a small law firm with fellow attorney Rod Rogahn in 2014 focused on corporate litigation, where he stayed until his appointment to the court.

Kelly has forged close ties with a number of right-wing think tanks and nonprofit organizations. He’s on the board of advisers and the former president of a local chapter of the Federalist Society, the powerful legal organization that has spent decades working to get far-right judges appointed across the country.

The organization later praised Kelly’s Supreme Court rulings, including one that overturned the city of Madison’s law banning guns on city buses.

After his failed bid for a seat on the court in 2020, Kelly joined the Institute for Reforming Government, a conservative nonprofit primarily funded by the right-wing Bradley Foundation. As an IRG senior fellow, Kelly advocated for “free-market and limited government policies,” and he authored a manual on how to limit the power of the executive branch.

According to an article published in the New Yorker by journalist Jane Mayer in 2021, the Bradley Foundation has been instrumental in funding voter suppression efforts and 2020 election conspiracy theories. Documents obtained by the Center for Media and Democracy show that Kelly received payments in 2022 from the Bradley Foundation and affiliated organizations.

Though it’s still early in the race, campaign finance documents reviewed by the American Independent Foundation show Kelly received campaign donations of $20,000 each from Richard and Elizabeth Uihlein, the billionaire owners of the Uline shipping and business supply company, who have emerged as major donors to far-right candidates and causes.

Kelly has also been endorsed by Uihlein-backed political action committee Fair Courts America, which has pledged to spend millions of dollars on his election effort. Last year, the American Independent Foundation exposed Fair Courts America’s plan to spend millions in consequential state Supreme Court races as what it calls “the only national conservative organization battling the Left in state court fights.”

Kelly has called himself a “judicial conservative”and accused his opponents of being “judicial activists.” His past comments and writing offer a window into how he might rule from the bench.

In articles Kelly wrote for the Federalist Society in 2012 and 2013, he heavily criticized former President Barack Obama, writing that his 2012 reelection was “a win for socialism, same-sex marriage, recreational marijuana and tax hikes,” according to reporting by WisPolitics.com. He also wrote that social services are “a program of involuntary servitude.” These blog posts were removed from the Federalist Society’s website sometime in 2016, prior to Kelly’s appointment to the state Supreme Court.

The Milwaukee Journal Sentinel reported that Kelly included in his application for appointment to the Supreme Court a book chapter that he wrote in 2014 in which he said same-sex marriage would rob marriage of any meaning. He also compared affirmative action to slavery, writing, “Morally, and as a matter of law, they are the same.”

Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, making regulation of abortion a matter for the states, the future of abortion rights in Wisconsin could end up in the hands of the state Supreme Court. Though Kelly has not recently commented on his position on abortion, which are severely restricted in Wisconsin thanks to a 173-year-old law, a blog post from 2012 hints at his true views: He accused the Democratic Party and the National Organization for Women of being committed to a practice of normalizing “taking the life of a human being” in order to “preserve sexual libertinism.”

Kelly recently received an endorsement from Pro-Life Wisconsin, a political action committee that supports anti-abortion candidates.

Published with permission of The American Independent Foundation.


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