Will Wins 4–1 Executive Council Vote For New Hampshire Supreme Court Seat

By Michael Graham, NH Journal

Weeks of attacks from New Hampshire far-right activists couldn’t block Judge Daniel Will from becoming the state’s next Supreme Court justice. And in the end, it wasn’t even close. The vote was 4-1 in favor.

Will, a Superior Court judge since 2021, will fill the seat left vacant by the retirement of Justice Anna Barbara Hantz Marconi.

“Congratulations to Judge Will on his confirmation today. His commitment to upholding the Constitution and the rule of law will serve Granite Staters well. I was proud to nominate him to serve on our Supreme Court, and I know he will serve with fairness and integrity,” Gov. Kelly Ayotte said in a statement.

Will’s opponents, including Cornerstone Action and RebuildNH, argued he is a liberal jurist in conservative clothing, pointing to his work as New Hampshire’s first solicitor general under Gov. Chris Sununu. During the height of the COVID-19 pandemic, Will represented the state in lawsuits challenging pandemic restrictions. Critics argued those defenses — including cases involving limits on gatherings and religious services — included claims by Will that the state and federal constitutions could be “suspended.”

Councilor Dave Wheeler (R-Milford) began his comments at Wednesday’s Executive Council meeting by reading a quote from Will during a court hearing that he said proved the critics were telling the truth.

“Will, quoting the 11th Circuit, said, ‘The 11th Circuit talked about there are times when civil liberties need to be temporarily suspended for the essential, Your Honor, for the greater good.’

“So I hope we can put to bed the fact that Will applied this case to try to say that our rights could be suspended in the time of COVID,” Wheeler said.

With Wheeler a solid “no” vote, all eyes were on first-term Councilor John Stephen (R-Manchester). Just minutes before the vote, Stephen issued an announcement that he would support Will, accompanied by a 24-page explanation of his reasoning.

“The evidence is clear: Judge Will is a textualist who will faithfully interpret the New Hampshire Constitution and protect the rights of our citizens. I am confident in this vote,” Stephen said in his statement.

As for accusations that Will might suspend constitutional rights, Stephen said he looked closely at those claims.

“I have received hundreds of emails, phone calls, and letters from constituents regarding this nomination — many expressing deep concern about Judge Will’s role as solicitor general in defending the governor’s emergency orders during COVID-19 in Binford v. Sununu. Those concerns are justified. The restrictions imposed during the pandemic affected the fundamental rights of every person in this state, and the citizens of New Hampshire have every right to demand that their next Supreme Court justice will never allow those rights to be cast aside,” Stephen said in his statement.

“As a Superior Court judge, Daniel Will has demonstrated an unwavering devotion to the New Hampshire Constitution and the rule of law,” Stephen continued. “In case after case, he has sided with civil liberties and individual rights over government overreach — without fail.

“His judicial record is one of a judge who takes the Constitution seriously.”

Will’s opponents remained unconvinced.

“New Hampshire’s Republican establishment — including some of the same people who supported Will — once promised that David Souter would be a ‘home run’ for conservatives. Still, the party is unable or unwilling to learn,” Cornerstone Action said in a statement after the vote.

But efforts to convince the council that Will — who had the backing of conservatives such as former Supreme Court Chief Justice Bob Lynn and pro-life activist Ovide Lamontagne — was a bridge too far ultimately failed.

After voting to approve Will’s nomination, the Executive Council unanimously confirmed Ayotte nominee Lucy Lange as New Hampshire’s next commissioner of the Department of Business and Economic Affairs.

“We need to think creatively about how we market New Hampshire to businesses looking to grow, and Lucy Lange brings a fresh perspective to help the BEA tell that story,” Ayotte said. “I’m proud to see her confirmed today, and I look forward to working together to attract new talent and opportunities to our state from Massachusetts, Canada, and beyond.”

This story was originally published by the NH Journal, an online news publication dedicated to providing fair, unbiased reporting on, and analysis of, political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.