The Big Lie About “Impartial” Judges

Phil Anderson

“Washington is like a strip club. You’ve got people tossing dollars, and people doing the dance.” Mike Huckabee, former Republican Governor of Arkansas and presidential candidate.  

Dancing for dollars, as Mr. Huckabee points out, is the norm in Washington and there is no reason to believe Madison is any different. Therefore, voters should not be fooled when judicial candidates claim to be impartial. Judges, like all politicians, will be affected by who is paying for their “non-partisan” campaigns. A judge's education, experience, and religious philosophy will also influence how they rule on cases involving social issues.  

Voters should be concerned with the personal beliefs of all candidates for office. They need to carefully examine the character, education, work experience, political views, and personal beliefs of candidates. There is a very simple reason why this is necessary – self interest. As the saying goes, “If you don't have a seat at the may be on the menu.” In a democratic system the way to have a seat at the table is with representatives, including judges, who share your values and have empathy for your situation.  

The lie of judicial impartiality was glaringly apparent this week as President Trump endorsed Judge Daniel Kelly for the Wisconsin Supreme Court. There is no doubt that Kelly is the conservative, Republican candidate for the court. This is proven by a number of facts in his background beginning with his appointment by Republican Governor Scott Walker in 2016. As Walker said at the time, Kelly had an understanding of the "proper role of the judiciary." In other words, Kelly was in tune with all far right political ideology. Walker knew exactly with whom Judge Kelly was going to dance.  

Kelly has been the president of the Milwaukee chapter of the Federalist Society that advocates for “original intent” in interpreting laws and the U.S. Constitution. They believe judicial rulings must adhere to the actual text and thinking of the original authors. They accuse other judges of “legislating from the bench.” This philosophy may sound reasonable but is merely a legalistic cover for ruling against social legislation, business regulations, equal rights, and similar laws they, and their campaign contributors, oppose.  

There are many problems with this dogma. The founding fathers were rich, white males of property. They intended for slavery to continue, women to have no rights, and working people to be prevented from having political power. Contrary to conservative talking points, our courts have more often exhibited conservative than liberal bias. This dogma is popular with conservatives because it serves their political agenda. There are many examples of conservatives becoming “activist judges” when needed to advance their cause.  

In real life judges do look at the legislative or original intent in deciding cases. They look at prior cases for precedents. But they also look at the spirit of the law and apply laws to changing societal norms, technologies, and circumstances of the specific case. This is the normal process by which laws stay relevant to changes in society. Over time through constitutional amendments, progressive legislation, and judicial rulings, law have adapted to changing circumstances and we have become a more democratic society. Being tied to a dogmatic principle of law does not make one more impartial or a better judge. In fact the better judge would seek justice for the specific case rather than loyalty to some legalistic dogma.  

Judge Kelly is also connected to the Wisconsin Institute for Law and Liberty (WILL). This non-profit organizations frequently fronts lawsuits for conservative causes. According to their web site, they “litigate in the areas of property rights, the freedom to earn a living, voting rights, regulation, taxation, school choice, and religious freedom” (i.e., all the conservative social bugaboo issues). Before his appointment to the Supreme Court he served on a advisory board for this organization's legal strategy. According to his campaign finance reports filed with the Wisconsin Elections Commission, Kelly has received $14,000 from members of WILL's board of directors. One Wisconsin Now (a progressive activist group) has tracked Kelly's Supreme Court voting record. They say Kelly has sided with WILL on every case they brought before Supreme Court since his appointment.  

There is more evidence of Kelly's conservative political activism. He worked as co-counsel for Justice Prosser during the 2011 Supreme Court election vote recount. He advised Justice Rebecca Bradley during her 2016 campaign for a full term on the Supreme Court. Bradley was another justice appointed by Governor Walker. In 2012 Kelly defended Republican legislators in legal challenges over gerrymandering of the legislative redistricting maps. In 2014 he defend the Republicans and Governor Walker in the John Doe investigation of campaign finance law violations. The conservative Wisconsin Supreme Court killed this investigation.  

The most disturbing aspects of Kelly's radical conservatism is revealed in his public writing prior to his appointment as a judge. News reports quote him as comparing affirmative action to slavery. Specifically he said “both spring [from the] principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same.” He has described Social Security and Medicare as being a form of “involuntary servitude” because “the benefit of your work goes to someone else without receiving anything in exchange.” He believes same sex marriage "will eventually rob the institution of marriage of any discernible meaning."  

Everything in Judge Kelly's background shows he is steeped in far right wing ideology. There is little doubt how he will rule on issues involving government regulation and the “freedom” of business to make profits. If you are concerned about clean water, high capacity wells depleting local water tables, environmental damage from foreign mining companies, or domestic pollution from factory farms, Judge Kelly is not likely to rule in your favor. Women seeking equal rights, equal pay, or control of their own bodies should not expect impartiality. People concerned about the separation of church and state, or public money going to voucher schools for religious education, will be disappointed. People seeking justice regarding equal rights, voting rights, or fair elections will face a judge with a record of opposing enforcement of these laws.  

Voters should be skeptical of Judge Kelly's claims that he will not bring his personal beliefs into the courtroom. He clearly is a far right conservative with of proven history of being partisan.