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 POISON 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 WOULD BE REALLY
UNFORTUNATE.
IF I COULD ENCOURAGE 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 GOTTEN 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