How he went from relatively unknown lawyer to a justice on Wisconsin’s highest court
ON THE FRONTLINES
By DAVE DALEY | Oct. 18, 2017
Madison — Meet Daniel Kelly, the most improbable candidate to land a seat on the Wisconsin Supreme Court.
A Colorado boy, Kelly did not grow up in Wisconsin. He didn’t attend either of the state’s two law schools, the legal factories that stamp out most of the top judges in Wisconsin. In the two decades that Kelly worked as a lawyer in the Badger State, it was largely out of the public spotlight on complex commercial litigation.
And when his name surfaced last year as one of three finalists to replace retiring Justice David Prosser, Kelly was excoriated as an extremist by lefties horrified at the high court’s rightward tilt. He was far from the odds-on favorite to earn the governor’s appointment.
So how did Kelly, 52, beat out 10 other lawyers including appeals court judges, high-profile Republicans and longtime supporters of Gov. Scott Walker? Just what did Walker see in Kelly?
Put a little differently, how did a kid from Colorado who spent his first nights in Wisconsin sleeping in the back seat of his car end up three decades later with a different sort of seat on the state’s highest court?
From the West to Wisconsin
Born in California, Kelly spent much of his childhood in Arvada, Colo., a suburb of 110,000 northwest of Denver. His parents had limited means, and his father, a cowboy in his younger days, worked as many as three jobs to provide for Kelly, his three brothers and three sisters. Kelly spent his summers fishing in Rocky Mountain streams, biking in foothill towns and tinkering on cars.
His introduction to Wisconsin came in 1982 when Carroll College in Waukesha offered him the financial aid he needed to attend college. A few days before school started, Kelly drove to Wisconsin, all of his belongings packed into his 11-year-old Chevy Chevelle, to get in some fishing at Lake Nagawicka in Delafield.
Short on money, Kelly was sleeping in his car. A Sheboygan Falls couple with two young children camping nearby invited him to share their dinner and campfire. The next day, they invited him sailing. That weekend, Kelly says in an interview, he fell in love with Wisconsin and its people.
“Here I am, newly arrived in Wisconsin, and the very first people I meet are the most open and generous family imaginable,” Kelly says. “This is who Wisconsinites are.”
At Carroll, Kelly met his wife, Elisa, a Milwaukee native who later became a nurse. They married after four years of dating. In 1986, Kelly graduated with a degree in political science and Spanish, and in 1991, he graduated from what’s now Regent University School of Law in Virginia, ranking third in his class and winning the school’s overall top law student award.
He worked for a year as a law clerk for Wisconsin Appeals Court Judge Ralph Adam Fine, then for four years at the U.S. Court of Federal Claims in Washington, D.C. He and his wife wanted to start a family, but not in D.C.’s rat-race atmosphere.
Picking the best place to raise their family was a no-brainer — they came back to Wisconsin. Over the next 20 years, the couple raised five children — a son, now 22, and four daughters, 20, 18, 16 and 10.
Family is at the heart of Kelly’s life, so he knows well the role of a father and the mindset of children. Children, he has written, are “all about fairness — I know this because they tell me so with some frequency.”
Jurists on the other hand, he emphasizes, have a more limited purview.
Some judges view an interpretation of a law that reaches an unjust conclusion as wrong, and they tinker with the law to reach an end they believe is just, Kelly says. “There’s an impulse to say, we’re a court of justice and we want just conclusions, so we’ll bend the meaning. It’s a very narrow role that we have. We’re not here to judge whether the policy was wise or not,” he says. “That’s not our role. That’s the Legislature’s role.”
Judicial authority and restraint
A quizzical look on his face, the 13-year-old boy stared up at Kelly. “Who’s your boss?” the teen blurted out.
“Your parents,” the justice replied, recounting the exchange that occurred during a tour of the Supreme Court offices by middle-schoolers. “And their parents — they’re my boss. And in five years, when you turn 18, you’re going to be my boss,” he added.
For Kelly, Wisconsin's citizens are the justices' ultimate authority.
“I don’t have any inherent authority in this office. And the judiciary does not have inherent authority. It all comes from the people who have created the office,” Kelly says.
“I exercise borrowed authority. I borrowed it from that young man’s parents and all of the other adults” in Wisconsin, he adds.
Kelly, who served as president of the Milwaukee chapter of the Federalist Society, says his judicial philosophy hews closely to the basic principles of that society, founded by prominent American conservatives and which emphasizes judicial restraint.
Not everyone agrees with his philosophy, of course.
Kelly’s appointment in July 2016 cemented the 5-2 conservative majority on the court and sent the left into a minor frenzy.
“Too extreme to be Supreme?” questioned Madison’s alternative weekly Isthmus. National left-wing bloggers were harsher. “Scott Walker Just Put An Insane Person On His State’s Supreme Court,” blared a headline at ThinkProgress. The story labeled Kelly an “obscure lawyer with highly idiosyncratic views.”
The uproar centered on a chapter Kelly wrote for a 2014 book that compared affirmative action to slavery and said that allowing same-sex marriages robbed the institution of marriage of any recognizable meaning. Ironically, Kelly says, he was simply paraphrasing the comparison made by others in the legal community, including U.S. Supreme Court Justice Clarence Thomas, whom he admires.
In John Rawls and Christian Social Engagement: Justice as Unfairness, Kelly wrote: “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. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship.”
Kelly shrugs off the criticism. “It was an introduction to the hyperbole that comes of being in the public eye,” he says. “I’m a big boy.”
He declines to discuss the comparison further, explaining that as a sitting justice, any talk of political issues is inappropriate. "I think it is so important for the public to understand that politics simply does not come into this role."
A relatively unknown lawyer
While critics are not exactly accurate in calling him “obscure,” Kelly certainly was lower profile than some of the other Supreme Court applicants.
Kelly worked largely out of the spotlight in the nearly 20 years he practiced law, first in a big Milwaukee law firm, then as vice president and general counsel at the philanthropic Kern Family Foundation and finally as a partner in a small Waukesha practice. His clients included manufacturers, developers, investors, financial institutions and tech companies, and he became known as “a lawyer’s lawyer.”
He is, however, much more than that. Kelly’s religion is a key part of who he is as a person — if not as a jurist. Raised a Catholic, Kelly began in college exploring the broad spectrum of Christianity and became a born-again Christian.
Christianity is a set of principles, how one relates to others and lives his life, he explains, with “a horizontal plane” on how one relates to his or her family and members of the community. But Christianity also has a “vertical plane,” how one relates to God.
“I don’t think that the vertical plane can be put on you,” Kelly continues. “So you can be raised in the principles of Christianity and how that governs our relationships with each other. And I certainly was in my (life) — and I admire my mom and my dad, and I am extraordinarily grateful for how they raised me.”
“But, there comes a point in everyone’s life where they need to consider for their own, on their own, what is that vertical plane and how do you respond to that,” Kelly adds. “I became aware of the need to explore that vertical plane when I was in college. And I think that’s when I fully became a Christian.”
So why did he get the nod?
Though Kelly emphasizes that his religious beliefs will play no role in his judicial decisions, they do form part of the core of the man whom Walker was clearly impressed with. In fact, the two have much in common on the personal front.
Like Kelly, Walker talks freely about his faith. The son of a Baptist preacher, the governor also lived in Colorado as a child before his father moved the family to Plainfield, Iowa, and then to Delavan.
Walker, too, is used to being savaged by the left for his views on affirmative action and same-sex marriage. Such criticisms would not likely dissuade a governor who himself has been the target of left-wing ire not only over his politics but his faith. In fact, the attacks may have helped convince Walker that Kelly would not be afraid to take a controversial stand.
Governors often see Supreme Court picks as part of their legacy — and here, too, Kelly was an attractive choice. He is relatively young and, though not overly active politically, is not a neophyte, either.
In the past decade, Kelly moved into political circles, developing a practice in campaign law and providing counsel to candidates, office-holders and contributors. In the fractious fight in 2011 when Republicans redrew district maps for the Wisconsin Legislature, Kelly was one of the lead attorneys defending the redrawn lines in a lawsuit brought by Democrats. He also helped direct an ad hoc group of 300 volunteer attorneys monitoring the 2011 recount in Prosser’s election victory over JoAnne Kloppenburg. Such experience could come in handy when Kelly wages an election campaign of his own. He would first face voters in 2020.
Political involvement alone, however, did not earn him the seat. Nor would a simple personal bond with the governor have likely been enough to seal the deal. In the end, Kelly points to a lengthy discussion that he and Walker had during the appointment process about judicial philosophy.
“He described what was it that he was looking for — and that is a jurist who would apply the law as it’s written, who would not make it up, who would not (substitute) his own political views and instincts and what he believes to be wise policy,” Kelly says.
That approach clearly reflects the conservative philosophies at the heart of Walker’s view of law and government. The governor was looking for someone who would “respect the limits of the office and the prerogatives of the other branches of government,” Kelly adds.
“And whether that was me or one of the other applicants, the most important part was that those principles and ideas find expression in this office,” he says.
“So I didn’t approach any of the interviews as selling me so much as saying this is what I believe, and this is what I intend to do should I be appointed. And if that matches up with what you’re looking for, then I’d be happy to take the appointment.”
In the governor’s eyes, Daniel Kelly — the deeply religious, family-centered, politically incorrect Western boy from Colorado who fell in love with Wisconsin, the improbable candidate — clearly fit the bill.
Dave Daley is a reporter for the Badger Institute's Project for 21st Century Federalism. Photo by Allen Fredrickson.
► Read the entire issue of Diggings Fall 2017 here.