% APPEARS IN COURT.
% "THE NEW YORK TIMES" CALLS THE
% RACE FOR WISCONSIN'S HIGH COURT
% ARGUABLY THE MOST IMPORTANT
% ELECTION IN AMERICA IN 2023.
% TWO CONSERVATIVES AND TWO
% LIBERALS FACE OFF IN A PRIMARY
% FEBRUARY 21, AND 2 WILL MOVE ON
% TO THE GENERAL ELECTION APRIL 4.
% THE WINNER WILL DETERMINE THE
% IDEOLOGICAL BALANCE OF THE COURT
% GOING FORWARD.
% "HERE AND NOW" SENIOR POLITICAL
% REPORTER ZAC SCHULTZ BRINGS US
% IN DEPTH INTERVIEWS WITH EACH
% CANDIDATE OVER THE NEXT MONTH.
% FIRST UP, DANIEL KELLY, WHO
% PREVIOUSLY SERVED ON THE
% WISCONSIN SUPREME COURT.
% KELLY WAS APPOINTED BY
% REPUBLICAN GOVERNOR SCOTT WALKER
% IN 2016.
% HE RAN FOR RE-ELECTION IN 2020
% AND LOST, BUT SAYS HE IS RUNNING
% AGAIN AS A CONSTITUTIONAL
% CONSERVATIVE.
% >> CONSTITUTIONAL CONSERVATISM
% IS THAT COMMITMENT TO THE
% ORIGINAL PUBLIC MEANING OF THAT
% DOCUMENT AND FAITHFULLY
% FOLLOWING THAT IN EVERY SINGLE
% CASE THAT WE DECIDE.
% >> DOES THAT EVER RUN INTO
% CHALLENGES WHEN YOU DON'T HAVE
% SPECIFIC LEGISLATION TO FOLLOW,
% YOU DON'T HAVE THE SPECIFIC
% HISTORY OF COURT DECISIONS TO
% FOLLOW, AND YOU KIND OF HAVE TO
% BREAK NEW GROUND AS THE COURT IS
% SOMETIMES REQUIRED TO DO.
% >> YEAH, SO WHAT WE DO WHEN
% WE'RE BREAKING NEW GROUND, WHEN
% WE SAY THAT, WE'RE TAKING PRINCE
% PPRINCIPLES THAT ALREADY EXIST,
% TEXTS THAT ALREADY EXISTS,
% WHETHER IT'S IN THE CONSTITUTION
% OR IN THE STATUTES, AND WE'RE
% APPLYING TO NEW SITUATIONS.
% SO IN THAT SENSE, IT MIGHT BE
% BREAKING NEW GROUND.
% BUT WE NEVER BREAK NEW GROUND IN
% LAW.
% SO WE KNOW FROM LOOKING AT THE
% CONSTITUTION, ARTICLE 4 OF OUR
% WISCONSIN CONSTITUTION SAYS THAT
% THE LEGISLATIVE POWER IS LOANED
% TO THE ASSEMBLY AND THE SENATE.
% AND, YOU KNOW, IT DOESN'T SAY
% THE SENATE ASSEMBLY, AND ALSO
% WHEN DAN KELLY THINKS HE'S GOT A
% GREAT IDEA FOR NEW LAW, RIGHT?
% IT'S ONLY THE LEGISLATURE THAT
% GETS TO MAKE OUR LAW.
% SO EVEN IN NOVEL CIRCUMSTANCES,
% WE'RE ALWAYS GOING TO GO BACK TO
% THE TEXT OF THE LAW, WHETHER
% IT'S THE STATUTE OR IT'S THE
% CONSTITUTION, AND WE'RE GOING TO
% APPLY THAT MEANING TO RESOLVE
% THE CASE.
% BUT IF WE EVER GET IN A POSITION
% OF IMPORTING OUR PERSONAL
% PREFERENCES OR OUR PERSONAL
% POLITICS, THAT'S POISON TO THE
% WORK OF THE COURT.
% THAT DESTROYS THE CONSTITUTION
% KNOLL ORDER, AND THAT'S WHY IT'S
% SO IMPORTANT TO SET THAT ASIDE,
% SET ASIDE ALL THOSE PERSONAL
% PREFERENCES AND POLICIES, AND
% JUST DECIDE CASES BASED ON THE
% LAW.%>> YOU MENTIONED THE POI
SON AT
% THE FORUM LAST WEEK, AND YOU
% TALKED ABOUT IN REFERENCE TO
% SOME OF THE COMMENTS YOU HEARD
% SOME OF YOUR OPPONENTS MAKING.
% WHEN YOU HEAR SOME OF THOSE
% PUBLIC COMMENTS, HOW MUCH OF
% THAT COMES ACROSS AS VIRTUE
% SIGNALING TO AN AUDIENCE, TO
% VOTERS, AS OPPOSED TO HOW
% SOMEONE MAY APPLY THE LAW FROM
% THE BENCH?
% >> YEAH, I MEAN, IT'S
% CONCEIVABLE THAT CERTAIN
% CANDIDATES MIGHT USE THAT AS
% VIRTUE SIGNALING, AND THEN
% OTHERS WOULD USE IT, JUST AS
% THIS IS HOW I'M GOING TO DECIDE
% CASES.
% HERE'S THE PROBLEM WITH BOTH OF
% THEM.
% SO IF YOU ARE -- IF YOU THINK AS
% A CANDIDATE THAT YOU SHOULD BE
% VIRTUE SIGNALING TO ATTRACT THE
% VOTES OF A CERTAIN BODY OF
% WISCONSINITES, WHAT YOU'RE
% TELLING THEM IS THAT YOU ARE
% NOT -- YOU ARE NOT COMMITTED TO
% THE CONSTITUTIONAL ORDER, AND
% YOU'RE TELLING THEM THAT THE
% POLITICS SHOULD HAVE A ROLE IN
% THE COURT, EVEN IF YOU DON'T
% INTEND TO FOLLOW THROUGH ON
% THAT, WHAT YOU'RE TELLING THE
% VOTERS IS THAT IT SHOULD HAVE A
% ROLE, AND I THINK THAT'S
% EXTRAORDINARILY PROBLEMATIC,
% BECAUSE WHEN PEOPLE COME IN TO
% THIS ROOM SO THAT THE COURT CAN
% HEAR THEIR CASE, WHAT PEOPLE OF
% WISCONSIN WANT TO KNOW, WITH
% ABSOLUTE CERTAINTY, IS THAT
% EVERYONE ON THAT BENCH IS GOING
% TO FOLLOW THE LAW.
% THEY DON'T COME IN HERE AND SAY,
% YOU KNOW, TO ONE OF THE
% JUSTICES, I WANT TO KNOW WHAT
% YOUR VALUES ARE.
% I WANT TO KNOW WHAT YOU THINK
% THE LAW OUGHT TO BE.
% THEY DON'T SAY THAT.
% THEY SAY FOLLOW THE LAW.
% AND THAT IS THE COMMITMENT THAT
% WE ARE TO MAKE, NOT ONLY IN
% FACT, BUT IN APPEARANCE, TOO.
% >> HOW DO VOTERS DISTINGUISH
% BETWEEN THAT WHICH -- THEY WOULD
% PROBABLY LARGELY AGREE WITH, AND
% WHO YOU WERE APPOINTED BY, WHO
% CAMPAIGNS ON YOUR BEHALF, WHEN
% YOU APPEAR AT A CAMPAIGN RALLY
% AND YOUR PERSONAL -- ON YOUR
% PERSONAL BEHALF AS OPPOSED TO
% REPRESENTING THE COURT, HOW CAN
% THE PUBLIC DRAW THE DISTINCTIONS
% BETWEEN THAT AND WHAT THEY MAY
% SEE ON THEIR SCREENS?
% >> YEAH, SO I THINK THE BEST WAY
% THAT PEOPLE CAN GET A SENSE,
% BECAUSE I TALK TO PEOPLE IN A
% VARIETY OF SETTINGS, AND THERE'S
% HARDLY ANYONE THAT I WON'T TALK
% TO.
% I MEAN, YOU KNOW, CUBS FANS.
% I WON'T TALK TO THEM.
% EVERYBODY ELSE, I'LL TALK TO.
% SO THAT MIGHT OCCUR IN A
% POLITICAL CONTEXT.
% IT MIGHT OCCUR IN A COMMUNITY
% CONTEXT.
% IT MIGHT OCCUR IN A COMMUNITY OF
% FAITH.
% IT COULD OCCUR IN A WHOLE
% VARIETY OF CIRCUMSTANCES.
% AND I THINK IT'S IMPORTANT THAT
% THE MEMBERS OF THE COURT ARE
% COMMITTED TO TALKING TO PEOPLE
% FROM A BROAD ARRAY OF
% BACKGROUNDS, AND SO I'M
% COMMITTED TO THAT.
% NOW, THE WAY THAT THEY BECOME
% CONFIDENT THAT I SET ASIDE MY
% POLITICS AND MY PREFERENCES IS
% BY READING MY WORDS.
% SO I WROTE EVERY SINGLE OPINION
% WHEN I WAS ON THE COURT.
% I WROTE IT WITH AN UNDERSTANDING
% THAT THE AUTHORITY I WAS USING
% WAS BORROWED FROM THE PEOPLE,
% AND THAT EACH OPINION I WROTE
% WAS REALLY A REPORT TO THEM ON
% HOW I USED THEIR BORROWED
% AUTHORITY.
% AND SO I WROTE IT IN EACH OF
% THOSE OPINIONS IN A WAY THAT
% IT'S ACCESSIBLE TO ANYONE.
% YOU DON'T HAVE TO BE A LAWYER TO
% READ AND UNDERSTAND THE OPINIONS
% THAT I WROTE, AND I THINK THAT
% WAS IMPORTANT BECAUSE OF THIS
% VERY QUESTION, BECAUSE THEY NEED
% TO BE CONFIDENT THAT THE MEMBERS
% OF THE COURT, THAT THEY'VE
% LOANED THEIR AUTHORITY TO, ARE
% JUST DECIDING THE CASES BASED ON
% THE LAW.
% >> WHEN YOU LOOK AT THE PEOPLE
% TALKING ABOUT WHAT THE NEXT
% COURT WILL ADDRESS, THERE ARE A
% LOT OF PEOPLE FRAMING THIS
% ELECTION AROUND A REDISTRICTING
% COURT COMING BACK, OR A
% REDISTRICTING SUIT COMING BACK,
% OR THE ABORTION 1849 LAW COMING
% TO THIS COURT.
% WHAT DO YOU THINK OF THE IDEA
% THAT SOME PEOPLE WILL BE GOING
% TO VOTE BASED ON WHETHER THEY
% WANT TO SEE CERTAIN OUTCOMES IN
% CERTAIN DECISIONS AND THAT'S HOW
% THEY'RE GOING TO CHOOSE THEIR
% JUSTICE?%>> I THINK THAT WOUL
D BE REALLY
% UNFORTUNATE.%IF I COULD ENCOU
RAGE OUR FELLOW
% WISCONSINITES JUST ONE THING IN
% THIS RACE, IS TO MAKE A DECISION
% ON WHO YOU BELIEVE WILL BE THE
% MOST FAITHFUL TO THE LAW.
% NOT TO THE -- NOT TO THE RESULTS
% THAT YOU WANT, BUT TO THE LAW.
% AND JUST IF I COULD JUST ADDRESS
% THIS AS A PRACTICAL MATTER, JUST
% FOR A MOMENT, THERE MIGHT BE AN
% ISSUE OR TWO ISSUES THAT YOU'RE
% REALLY PASSIONATE ABOUT, AND YOU
% REALLY WANT TO COME OUT A
% PARTICULAR WAY.
% AND SO YOU SAY, I'M GOING TO GO
% AND FIND A JUSTICE WHO WILL
% PROMISE ME THAT HE'LL VOTE OR
% SHE'LL VOTE IN THIS PARTICULAR
% WAY ON THIS ISSUE.
% I THINK THAT'S A DANGEROUS PLACE
% TO GO, BECAUSE IF YOU FIND A
% CANDIDATE WHO WILL PROMISE YOU
% THAT THEY WILL VOTE IN A
% PARTICULAR WAY ON YOUR FAVORED
% ISSUE, THAT KIND OF JUSTICE IS
% ALSO GOING TO BE TAKING POLITICS
% INTO ACCOUNT IN VOTING ON EVERY
% OTHER ISSUE.
% BECAUSE JUDICIAL ACTIVISM VERSUS
% CONSTITUTIONAL CONSERVATISM,
% IT'S AN ALL OR NOTHING THING.
% YOU EITHER BELIEVE THAT YOU CAN
% BRING YOUR POLITICS INTO THE
% COURT AND MAKE DECISIONS BASED
% ON THAT, OR YOU DON'T.
% >> IT'S FASCINATING YOU
% MENTIONED THE LOOKING TO THE
% COURTS TO SOLVE A POLITICAL
% PROBLEM, BECAUSE THERE'S A LOT
% OF PEOPLE WHO WILL SAY THAT'S
% JUST WHAT THE DOBBS DECISION WAS
% WITH THE U.S. SUPREME COURT,
% THAT THAT WAS CONSERVATIVES
% LOOKING TO A CONSERVATIVE COURT
% TO SOLVE A POLITICAL ISSUE.
% WHAT IS YOUR OPINION OF THE
% DOBBS DECISION?
% >> SO I DON'T WANT TO SPEAK
% DIRECTLY TO IT.
% YOU KNOW, THE ISSUE OF ABORTION
% IS VERY LIKELY TO COME TO COURT,
% TO THIS COURT.
% I UNDERSTAND THERE'S ALREADY A
% LAWSUIT THAT CHALLENGES AN EARLY
% VERSION OF THE STATUTE, AND
% INTERESTINGLY ENOUGH, THE CLAIM
% THERE -- IT'S BEEN A WHILE SINCE
% I'VE LOOKED AT THE PLEADINGS,
% YOU NEVER KNOW, MIGHT HAVE BEEN
% AMENDED, BUT WHEN I ORIGINALLY
% LOOKED AT THEM, THERE WAS NO
% CLAIM OF UNCONSTITUTIONALITY.
% THEY SIMPLY SAID THAT THERE WAS
% A SUBSEQUENT STATUTE THAT
% OVERRULES THE PRIOR STATUTE, AND
% SO REALLY THE CONSTITUTIONAL
% ELEMENT OR THE QUESTION IS NOT
% COMING TO THE COURT ANY TIME
% SOON, ALTHOUGH THAT IS CERTAINLY
% A POSSIBILITY DOWN THE ROAD.
% SO THEY OPENED UP THE
% POSSIBILITY FOR THIS TO BE
% ADDRESSED AT THE STATE LEVEL,
% AND THAT'S ALL THEY DID.
% >> HOW MUCH IS THIS RACE CHANGED
% VERSUS THE 2020 RACE IN TERMS OF
% NATIONAL ATTENTION, STATE
% ATTENTION, PEOPLE'S AWARENESS OF
% WHAT THE COURT MEANS IN THEIR
% LIVES?%>> I THINK IT HAS GOTT
EN A
% HIGHER PROFILE, AND THAT IN AND
% OF ITSELF, I FIND SOMEWHAT
% REGRETTABLE.
% WHEN THE COURT GETS A HIGHER
% PROFILE, WHAT THAT SUGGESTS TO
% ME IS THAT THERE ARE FORCES THAT
% ARE TRYING TO ELEVATE ITS
% POSITION IN THE CONSTITUTIONAL
% ORDER TO BE IN A POSITION THAT
% IT'S NOT SUPPOSED TO BE IN.
% AND SO, YOU KNOW, A LOT OF WHAT
% I HEAR IS THAT THERE ARE ISSUE
% ADVOCACY GROUPS THAT ARE GOING
% TO SPEND A LOT OF MONEY IN THIS
% RACE BECAUSE THEY WANT, FRANKLY,
% ONE OF MY -- ONE OF MY
% OPPONENTS, MAYBE TWO OF MY
% OPPONENTS WHO ARE TALKING ABOUT
% THEIR VALUES AND WHAT THEY'RE
% GOING TO BRING TO THE COURT AS
% RULES OF DECISION.
% AND THESE INTEREST GROUPS ARE
% LATCHING ON TO THAT AND SAYING,
% YES, THAT'S WHAT WE WANT.
% WE WANT SOMEONE ON THE BENCH
% WHO'S GOING TO BRING THESE
% PARTICULAR POLITICS TO THE WORK
% OF THE COURT TO IMPORT THAT
% POISON INTO THE JUDICIAL
% PROCESS.
% WE WANT THAT.
% AND WHAT I'VE HEARD IS THERE'S
% GOING TO BE A LOT OF MONEY THAT