Prominent conservative and liberal activists in Wisconsin have very different takes on Gov. Scott Walker’s recent pick for the state’s next state Supreme Court justice.
Walker named Waukesha attorney Dan Kelly to the high court last week. He'll take over for Justice David Prosser, who's retiring on July 31.
"Daniel Kelly is an exceptionally accomplished trial and appellate attorney who has appeared before the U.S. Supreme Court, U.S. Court of Appeals for the 7th Circuit, and Wisconsin Supreme Court," Walker said in a statement. "His extensive real world experience, combined with his intellect and integrity, make him well-suited to be an influential member of the Court."
While Kelly brings years of experience as an attorney to the table, he has never been a judge, like Prosser before his appointment.
One Wisconsin Now executive director Scot Ross called out Kelly’s lack of judicial experience and said his selection was politically-motivated.
"It seems that the scales of justice are certainly tipped in favor of Gov. Walker at this point," Ross said. "He thinks about who is going to serve his ideological and partisan interests before anything else in every single thing he does, and I don’t think at this point in time, Gov. Walker has earned the benefit of the doubt on any of these things."
But, judicial experience isn’t as important as some think because the court doesn’t function like a circuit court, according to Rick Esenberg, president and founder of the Wisconsin Institute for Law & Liberty, an organization for which Kelly serves on an advisory panel.
Rather, it defines and refines legal doctrines, which requires lawyers who excel in "book lawyering," such as reading cases and reasoning about the law, he said.
"You need a lawyer with a special set of skills, and sometimes you’ll find those skills within judges who are presiding on the bench, and sometimes you’ll find those skills among people who are practicing law, particularly people who practice law at a very sophisticated level," Esenberg said. "Dan is one of those guys."
Ross said he's concerned about Kelly’s strong ties to conservative causes and the direction it will take the court. The court is widely seen as having a 5-2 conservative majority.
"It’s going to be a more pro-business, anti-individual, pro-conservative, anti-worker court," Ross said. "I don’t think that serves the people well."
Ross also took issue with Kelly's past work as the Kern Family Foundation's vice president and general counsel, pointing to the past donations the Kern family has made to Walker and his campaigns.
"They dole out anywhere from $30 million to $40 million a year to organizations specifically geared towards the privatization of public schools, and as we know, that is among Gov. Walker’s top legislative priorities," he said.
Democrats have also criticized Kelly's selection because of his representation of Wisconsin Republicans in a federal trial over the state’s legislative districts that were drawn in 2010, and his help defending Walker’s collective bargaining law.
However, Esenberg said it’s "dangerous" to judge lawyers by positions they take on behalf of their clients, and qualified attorneys can avoid having their personal feelings interfere with their interpretation of the law.
"Dan is a very, very smart, very, very capable lawyer," he said. "He’s a conservative lawyer, but I always caution people that when you talk about conservative and liberal when it comes to judges, it’s a little bit different. It doesn’t mean that they will do whatever their political party wants. No judge thinks like that and no judge acts like that on either side of the aisle."
There should be more oversight when it comes to picking state Supreme Court justices, Ross said.
"If Gov. Walker’s appointments had any opportunity to be challenged, if he had to have the advice and consent of the senate, I think he might run into some problems with this particular nomination," he said.
Kelly was one of three finalists for the position. The other two were state appeals court judges Mark Gundrum and Thomas Hruz. He will be eligible for re-election in 2020.
