by Bill Lueders, Wisconsin Examiner
February 9, 2023
What Daniel Kelly wants, what he really, really wants, is to be able to throw his support behind Jennifer Dorow, his fellow conservative candidate for Wisconsin Supreme Court, should she advance from the Feb. 21 primary and he doesn’t.
“I would love to be able to make that commitment,” Kelly told a gathering of Dane County Republicans on Tuesday night in Madison. “But I’m done making blind endorsements.”
Kelly recounted his disappointment at a fellow conservative justice who has at times sided with the court’s (currently) three liberals in 4-3 votes. “You know, four years ago when Brian Hagedorn [was running], he told us that he was a constitutional conservative and I took him at his word,” Kelly said. “I endorsed him. I campaigned for him. I helped him get to the Supreme Court. And when he got there, I discovered that when he says he’s a constitutional conservative, [he] doesn’t mean the same thing that I do.”
Kelly served on the court for four years before losing the election to Justice Jill Karofsky in 2020, the most recent state Supreme Court race before this one. Dorow is a circuit court judge in Waukesha County. Both were appointed to their judgeships by Republican Gov. Scott Walker.
The Feb. 21 primary will narrow the field from four to two candidates for the April 4 general election. The elections, for a seat being vacated by conservative Justice Patience Roggensack, will determine whether conservatives or liberals comprise the court’s majority during a pivotal time.
If either of the two liberal-backed candidates — Milwaukee Circuit Court Judge Janet Protasiewicz and Dane County Circuit Court Judge Everett Mitchell — should be elected, the court’s liberal wing will have a majority for the first time in decades. If Kelly or Dorow win, conservatives are guaranteed to hold the court until 2026.
The next court will likely decide the future of abortion rights in Wisconsin, as well as cases involving the state’s heavily gerrymandered political maps and the rules for and challenges to the 2024 election.
In 2020, Wisconsin’s Supreme Court nearly became the only court in the nation to side with Donald Trump in a legal challenge to his electoral defeat. The vote was 4-3, with Hagedorn joining the court’s three liberals in rejecting Trump’s baseless claims.
Botching the ‘first lesson’
Kelly, in his remarks to the Dane County Republican Party at Sass, a restaurant and tavern on the Capitol Square, did not mention Hagedorn’s vote on Trump’s election challenge. But he did call him out for having voted with the court’s (at the time) two liberals on the losing side of a 4-3 decision to strike down the state’s “safer-at-home” order issued by the administration of Democratic Gov. Tony Evers during the initial deadly wave of the pandemic.
In that case, Secretary-designee of the Wisconsin Department of Health Services Andrea Palm approved the state’s “safer at home” policy, under her department’s statutory authority to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state.” Republicans in the Wisconsin State Legislature sued to block the order, and the Supreme Court’s four remaining conservatives agreed.
Here’s how Kelly, at Tuesday’s event, described what happened: “The Secretary of Human Services says, ‘You can’t go to work unless I tell you. You can’t take your children to school unless I tell you. You can’t go to church unless I tell you to. You can’t do anything unless I tell you to.’ ” Kelly said Palm “came into her Madison office [and typed up the stay-at-home order]. When she was done, she held that up and said, ‘Behold, my law that I just made up today. Legislators have never seen this. They never voted on it, but I made it.’ ”
Palm did not hold up the order and say this.
Kelly then went into some detail about why Dorow might not be up to snuff as a standard-bearer of constitutional conservatism. One example was Dorow’s statement, in her campaign literature, that she respects the rights that “our state to federal constitutions endow upon every citizen,” as he said it read.
“Where do our rights come from?” Kelly quizzed his audience.
“God!” someone shouted in reply. Bingo.
Kelly drove the point home: “One of the most important documents ever written in human history is our Declaration of Independence. You remember what it says: ‘We hold these truths to be self-evident.’ ‘All men are created equal and are endowed by their Creator with certain unalienable rights.’ ” He told the gathering: “So I’d love to be able to endorse Jennifer, if she comes through. All I have right now is what she’s putting in her campaign literature and that mistakes the very first lesson of our constitution.”
Kelly said it would not take much for Dorow to win his support: “All I need is something that she’s done publicly to explain to me what she means when she says she’s a judicial conservative,” Kelly explained. “She’s been 11 years on the bench and she’s left no evidence of what she means by that. There’s no treatise. There’s no law review article. There’s not even an opinion piece.” No nothing.
He continued, “I think it’s highly presumptuous to demand that today I commit to her personally before I know what she believes.”
‘Two very good conservative candidates’
Dorow did not attend the event, but Eric Toney, who ran unsuccessfully against Democratic Attorney General Josh Kaul last fall, spoke on her behalf. He said she had been “vetted” — he used this word multiple times — by the “people of Waukesha County in two elections” (both times unopposed) and by countless groups, from police unions to Wisconsin Right to Life. He noted that Dorow was endorsed by Justice Roggensack, former Justice Jon Wilcox, and state Senator Majority Leader Devin LeMahieu and Sen. Howard Marklein, among many others.
“We have two very good conservative candidates in this race, and we would love to see either one of them on the Wisconsin Supreme Court,” Toney said. “Hopefully, we’ll both make it through, that will be the best-case scenario.” (This a possibility, as an evenly divided vote among four serious contenders could end up with two conservatives or two liberals advancing to the April 4 election.”)
Toney stressed the importance of having a conservative win the race, referring to Protasiewicz as “the progressive radical liberal running that wants to impart her values upon us.” He warned that she would “erode and eliminate all of the conservative reforms that we’ve seen over the years.”
He said that Dorow, whom he has only recently gotten to know, had “earned the respect of every single person in this room” by how she had conducted herself while presiding over the high-profile trial that led to the conviction of the man who killed six people and injured dozens at a Waukesha Christmas parade in 2021. And when asked how she got through that trial, Toney said Dorow replied that it’s what she does every day.
“This is how she starts her day — with her Bible, reading her Bible. And that’s how she got through that trial,” Toney said.
Speaking before Kelly took the mic but after executive chef Lauren Cahillane of Sass did a comedy routine (“Don’t tip like Democrats,” she urged), Toney threw out the welcome mat to Kelly, praising hs record as a jurist and asking him to agree to support Dorow “if she prevails and you don’t,” just as she has pledged to do for him.
It was this overture that Kelly rejected.
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