Walker appoints attorney Dan Kelly to Wisconsin Supreme Court

Posted at 3:26 PM, Jul 22, 2016
and last updated 2016-07-22 18:48:17-04

MADISON, Wis. (AP) -- Gov. Scott Walker appointed conservative attorney Dan Kelly to the Wisconsin Supreme Court on Friday, choosing a lawyer who has helped defend some of the governor's most contentious proposals and believes same-sex marriage robs the institution of meaning and affirmative action is akin to slavery.

Kelly will replace retiring Justice David Prosser, a member of the seven-justice court's five-person conservative majority. His appointment won't change the court's ideological tilt. He'll almost certainly be seen as succeeding Prosser as the fifth member of the majority.

Walker spokesman Tom Everson told The Associated Press that the governor chose the 52-year-old Kelly, who holds a bachelor's degree in political science and Spanish from Carrol College and a law degree from the Regent University School of Law in Virginia.

He currently owns the Rogahn Kelly LLC law firm and sits on the litigation advisory board for the Wisconsin Institute for Law and Liberty. The conservative group has fought against lawsuits challenging Walker's signature law stripping public workers of nearly all their union rights and sided with Walker in a lawsuit to end a secret John Doe investigation into his 2012 recall campaign and conservative groups that support him. The probe ended after the state Supreme Court ruled nothing illegal occurred.

Kelly also successfully defended Wisconsin Republicans' 2011 legislative redistricting plan in a federal lawsuit alleging the new maps denied voters their rights. He was Prosser's co-counsel during the justice's election recount in 2011 and advised Justice Rebecca Bradley, another Walker appointee to the high court, during her 2016 election campaign.

In his application materials for Prosser's position, Kelly wrote that he wants to be a justice so he can help preserve the rule of law, warning "no end of mischief" ensues when judicial activists develop new laws through their rulings.

"Departure from the proper judicial role ... exchanges the rule of law for the rule of man, something that Western political development has been in the process of rejecting for centuries," he wrote.

He went on to expound at length on gay marriage in an essay contrasting justice with fairness, saying the U.S. Supreme Court's decision to legalize the practice "will eventually rob the institution of marriage of any discernible meaning."

"In the name of fairness, we will, in time, recognize other nontraditional arrangements as `marriages,' and you will -- coerced by law if necessary -- dignify them too," he wrote. "Finally, when marriage eventually means anything imaginable, we will find it means nothing at all. All because of an unruly fairness that aspired to the office of justice itself."

He also delved into affirmative action, writing that the practice forces employers to hire people society wants them to hire and is a derivative of slavery.

"Affirmative action and slavery differ, obviously, in significant ways. But it's more a question of degree than principle, for they both spring from the same taproot," Kelly wrote. "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."

Kelly's appointment marks Walker's second selection to the state Supreme Court. His previous appointee, Rebecca Bradley, won a full 10-year term on the court in April. Kelly will face election for a full 10-year term in 2020. Appointees must stand for election as soon as possible but under state law only one incumbent justice can run for re-election each year. Justice Annette Ziegler is up in 2017, Michael Gableman in 2018 and Abrahamson in 2019.

Walker chose Kelly over fellow finalists Mark Gundrum and Thomas Hruz. Gundrum, a former Republican legislator who served alongside Walker in the state Assembly, helped write the state's now-defunct ban on gay marriage and is now a state appellate judge. Hruz, a former Prosser clerk, also is a state appellate judge.