"Affirmative action and slavery differ, obviously, in significant ways," Kelly wrote. "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."First, let's clarify that this passage wasn't something Kelly wrote as a drunk sophomore in his university's "alternative" political magazine. He wrote it in 2014, and he included it in his Supreme Court application packet. This is an argument he is proud of.
And that aggravates me. For the obvious reasons, sure, but more because this isn't even the right way of making an idiotic analogy between affirmative action and slavery. The right way of doing that is something to the effect of "both involve the distribution of social benefits and burdens on the basis of skin color." That wouldn't make the conclusion that "Morally, and as a matter of law, they are the same" any less appalling, but at least it would have an internal consistency to it.
But Kelly can't even get that right. Affirmative action very rarely "force[s] someone into an unwanted economic relationship." Much the opposite -- typically affirmative action programs are voluntarily adopted by given institutions (e.g., the University of Wisconsin), and then challenged by external actors who want them instead to use a colorblind admissions/hiring process -- or, to put it another way, want the judiciary to force them into an economic transaction that differs from the one that the university or business would want to enter into if left to its own devices.
This is why I find it so baffling when libertarians say they oppose affirmative action. It takes either a private or quasi-private (where a governmental actor is behaving as a "market-participant") decision, and strips it from the normal decisionmaker in favor of a blanket command-and-control rule imposed by governmental fiat. Libertarians should hate that!
Actually, it seems evident that Kelly simply got his issues confused. The argument he's making has been applied to cherished elements of the civil rights project before -- but it's the Civil Rights Act of 1964 that's been the target (Rand Paul made precisely the argument that this law, by prohibiting racial discrimination in various economic transactions, "force[s] someone into an unwanted economic relationship."). So really Kelly should be arguing that its the Civil Rights Act that is "[m]orally, and as a matter of law" the same as slavery.
In conclusion, Kelly probably won't choke anybody, so he'll still likely be a net boon on the Wisconsin Supreme Court compared to the guy he's replacing.