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Wisconsin Governor Scott Walker, a past and possibly future GOP presidential contender, has just tossed a dripping hunk of red meat to his party’s conservative base by appointing to the state Supreme Court a lawyer who believes affirmative action is as morally reprehensible as slavery and that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning.”
Attorney Daniel Kelly, named last Friday to fill a soon-to-be-vacant seat on the state Supreme Court, expressed these and other extreme views in a book chapter he submitted along with his application for the job.
Kelly’s appointment, which will continue the court’s 5-2 conservative majority, requires no legislative confirmation. He will not face voters until 2020, at which time he will be able to run for a ten-year term.
Unlike the two other finalists for the position, Kelly, 52, has no prior judicial experience. But he does come to the job with deep ties to conservative organizations and strongly held ideological positions that count as radical even among Republicans.
Kelly is the president of the Milwaukee Lawyer’s Chapter of the Federalist Society, a conservative legal group organized in opposition to what it calls “orthodox liberal ideology which advocates a centralized and uniform society.” He is the former vice president and general counsel for the Kern Family Foundation, a conservative philanthropic organization.
Kelly’s extreme views were expressed in a lengthy chapter from a 2014 book, John Rawls and Christian Social Engagement: Justice as Unfairness. After establishing that “all authority” derives from God himself, Kelly harshly attacks same-sex marriage and affirmative action programs that create racial preferences in employment, which he likens to slavery.
“Affirmative action and slavery differ, obviously, in significant ways,” Kelly conceded.
“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 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. Kelly refers to accommodation of same-sex marriage as “coerced dignity” and laments legal actions brought against a photography company in New Mexico and baker in Colorado who refused to perform services for same-sex ceremonies.
“You will afford same-sex marriages the same dignity as heterosexual marriages,” Kelly writes mockingly of efforts to insist that businesses open to the public refrain from discrimination. “You will. If our governors are the source of our human dignity, fairness commands no less.”
Kelly also writes that the sentiments expressed in the court’s ruling on the Defense of Marriage Act, issued prior to its 2015 ruling striking down all state laws against same-sex marriage, “will eventually rob the institution of marriage of any discernible meaning. Fairness, as a substitute for justice, must always reduce to the least common denominator. By little and little, it will wear away marriage’s distinctives.”
At a press conference Friday to announce his pick, Walker and Kelly both insisted that Kelly’s past writings and personal views would have absolutely nothing to do with how he does his job.
“The oath that I will take will guarantee to you that my personal political beliefs and my political philosophy will have no impact on me whatsoever,” Kelly said. “Those things simply have no place inside a court of law.”
When a reporter pointed out that Kelly included his writings about the law as it pertains to affirmative action and same-sex marriage in his application for the Supreme Court, Walker wouldn’t let Kelly respond. Instead, he jumped in to explain that writings were provided by applicants because his office asked for them in the spirit of “full disclosure.”
“I don’t want an activist judge for the left or for the right,” Walker said.
Walker’s pick, announced late in the afternoon just prior to the weekend, has stirred only minimal attention in shell-shocked Wisconsin, which has seen wave after wave of power grabs under Walker and a GOP-dominated state legislature. But a few national news outlets, including The Daily Kos and ThinkProgress, have weighed in.
Kelly’s views on affirmative action and gay marriage were first reported by me on June 30 in Isthmus, a Madison weekly newspaper. They were not picked up by other state media until a Milwaukee Journal Sentinel story on July 21, the day before Walker announced his pick and after he had apparently already made up his mind.
Among the questions Kelly has declined to answer is whether he believes that employers should have the right to refuse hire black people, given his moral revulsion to the idea that government may “force someone into an unwanted economic relationship” through affirmative action.
Nor has Kelly answered publicly whether he believes the U.S. Supreme Court’s ruling allowing same-sex marriage settled the question as a matter of law.
Bill Lueders is associate editor of The Progressive.