From left to right, attorney Daniel Kelly, Judge Mark Gundrum and Judge Thomas Hruz.
One of three finalists named by Gov. Scott Walker for appointment to the Wisconsin Supreme Court considers affirmative action to be morally comparable to the practice of slavery.
“Affirmative action and slavery differ, obviously, in significant ways,” wrote Milwaukee attorney Daniel Kelly in a chapter published in a 2014 book. “But it’s more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same....”
The chapter, which Kelly included in his application for the appointment, also delivers a blistering critique of the U.S. Supreme Court’s 2013 ruling striking down the Defense of Marriage Act, which had defined marriage under federal law to exclude same-sex partners. This ruling, Kelly opined, “will eventually rob the institution of marriage of any discernible meaning.”
Walker’s selection team on June 22 picked Kelly as one of three finalists for the appointment, along with appeals court judges Mark Gundrum and Thomas Hruz. They were culled from a list of five semifinalists, from 11 original applicants. The governor is expected to interview the finalists and make his pick in advance of Justice David Prosser’s midterm retirement, effective July 31.
The seven-member court is already dominated five to two by conservatives, including Prosser, following Walker’s appointment of Justice Rebecca Bradley to fill a vacancy on the court last year. Bradley was elected to a 10-year term in April. Prosser’s successor will not face voters until 2020.
Among the three finalists, Kelly is the only one without judicial experience. Four other applicants lacking this credential, including Public Service Commission chair Ellen Nowak, the only woman applicant, were passed over.
Walker’s selection team — consisting of Rich Zipperer, the governor’s chief of staff; Michael Brennan, chair of his Judicial Selection Advisory Committee; and Andrew Hitt, former deputy legal counsel — seemed to avoid other applicants who raised concerns about partisanship and cronyism.
Besides Nowak, whom Walker appointed to the PSC, rejected applicants included Brian Hagedorn, Walker’s former chief legal counsel; Jefferson County Judge Randy Koschnick, whose daughter is Walker’s current chief legal counsel; and former Dane County Judge James Troupis, who in 2011 helped Republicans redraw voting maps to partisan advantage.
Kelly’s application, obtained from Walker’s office through an open records request, touts his role in defending the Republicans’ redistricting plan against a legal challenge. He calls the redrawing of voter boundaries “a quintessentially political activity, the conduct of which belongs to the political branches of government.”
Kelly also highlights his role, along with Troupis, in successfully representing Prosser in his 2011 recount. He accuses challenger JoAnne Kloppenburg of “judicial activism,” as opposed to Prosser’s record of “carefully evaluating cases according to the law, without favoring anyone’s political agenda.”
Kloppenburg, an appeals court judge who ran a second unsuccessful bid against Rebecca Bradley this year, declined to comment. She has previously rejected accusations of ideological bias.
Kelly’s application notes his membership in the Federalist Society, a conservative legal group. It stresses his affinity for the late Justice Antonin Scalia, whose view of constitutional rights was so crimped he could not see a problem with executing people who are actually innocent. And it notes Kelly’s role as a “kitchen cabinet” adviser to Bradley’s 2016 campaign.
But most revealing is Kelly’s 35-page chapter from the 2014 book John Rawls and Christian Social Engagement: Justice as Unfairness. After establishing that “all authority” derives from God himself, Kelly launches into bromides against same-sex marriage and affirmative action. He calls court-ordered accommodation of same-sex marriage “coerced dignity” and professes similar disdain for affirmative action programs that create racial preferences in employment.
“Affirmative action,” he charges, “intrud[es] on individuals’ decision-making processes, putting its thumb on the scales of the employment decision. It compels the employer to hire who society thinks he should hire, rather than who he thinks he should hire.”
What if the employer is a bigot who doesn’t want to hire any black people? Should he have that right? Kelly did not respond to this and a small number of other questions emailed to his law office, with an accompanying voice-mail message. A staffer confirmed that he was in.
Howard Schweber, a UW-Madison professor of political science who reviewed Kelly’s application at Isthmus’ request, calls him a competent lawyer otherwise lacking qualifications for the state Supreme Court, aside from “an unwavering commitment to an ideology that is shared by Gov. Walker and the Republican leadership in the Legislature.”
Ed Fallone, a professor at Marquette University Law School who ran unsuccessfully for state Supreme Court in 2013, says “the only relevant issue” regarding Kelly’s personal and political beliefs is “whether, if appointed, he would follow his oath and apply the state and federal constitution and the precedents of the U.S. and Wisconsin Supreme Court.” Among the questions Kelly rebuffed was one to this effect.
Walker spokesman Tom Evenson has said the office will not comment on “any applicants for the Supreme Court as the selection process is ongoing.”
Kelly, who was 52 when he submitted his application in mid-May (he declined to say whether this has changed), is a partner in a Waukesha-based law firm. He previously logged 15 years at a business law firm and served as vice president and general counsel for the Kern Family Foundation, a conservative philanthropic organization. Among the 11 applicants, he alone asked that his name be kept confidential unless he became a finalist, at which point state law required disclosure.
Gundrum, 46, is a former Republican state lawmaker who was elected to Waukesha County circuit court in 2010 and appointed the next year by Walker to a state appeals court. As a lawmaker, Gundrum coauthored the state’s constitutional amendment banning same-sex marriage, which passed in 2006 and was later struck down by the U.S. Supreme Court. He also was the lead force behind a package of criminal justice reforms meant to reduce wrongful convictions. In 2008, he served a stint in Iraq as a member of the U.S. Army Reserve.
Asked on his application to name “one of the worst U.S. or state Supreme Court decisions of the last 30 years,” Gundrum cites a 2005 Wisconsin Supreme Court decision in which the court not only threw out what was deemed to be a coerced confession from a 14-year-old boy but mandated that future interrogations of juveniles be videotaped. Gundrum faults the court for “overreach,” arguing that it was usurping a function of the legislative branch. As a legislator, Gundrum personally pushed for expanded use of videotaped interrogations.
Gundrum, as an appeals court judge, also wrote an important decision upholding the right of the public to learn the identity of people contacting state lawmakers.
Hruz, 42, has clerked for Justice Prosser and U.S. Appeals Court Judge John Coffey, taught at Marquette University Law School and served as a research fellow at the conservative Wisconsin Policy Research Institute. Walker tapped him for an appeals court appointment in 2014.
Hruz’s application cites the Wisconsin Supreme Court’s 1998 decision upholding Milwaukee’s pioneering school choice program, which used public dollars to fund private schools, as among the best rulings of the last three decades. He praises it for addressing only the narrow question of whether “the Legislature and Governor overstepped their bounds” in enacting this program, not whether it was a good idea.
State records do not show any contributions from Gundrum to other candidates since 2008. Hruz has given money to Walker ($750), Rebecca Bradley ($400) and the Republican Party of Wisconsin ($200), among others.
Kelly has given at least $3,000 since 2009 to candidates including Prosser, Bradley and GOP Attorney General Brad Schimel. The records show a $250 contribution to Walker in 2012 from Daniel Kelly, but the Walker campaign’s failure to provide required address information makes positive identification impossible. Kelly declined to say whether he made this contribution.
