Concord, NH — Tomorrow, the Executive Council is expected to vote on whether to confirm Judge Daniel Will to the New Hampshire Supreme Court. In the weeks since Governor Ayotte announced this nomination, Cornerstone has urged conservatives to oppose it. Now, an audio recording of Judge Will’s own oral argument makes the case against confirmation undeniable.
During the Covid shutdown, Daniel Will served as New Hampshire’s Solicitor General. In that role, he argued in court that the government has the power to suspend constitutional rights during a state of emergency—a theory the New Hampshire House formally denounced in legislative findings.
When Will was nominated to the Superior Court, conservative groups raised these arguments at his confirmation hearing. Rather than explain or qualify these arguments, Will simply denied he ever made them. “We never made that argument,” he flatly insisted.
Councilor Dave Wheeler, the only vote against confirmation, wasn’t buying it: “He denied that he asked that the constitution be suspended, and nothing could be further from the truth… I feel that he was being deceptive.”
Now, facing opposition to his Supreme Court nomination, Will has again repeatedly denied that he ever argued constitutional rights could be suspended. No qualification. No acknowledgment. No explanation.
The audio recording of the Binford oral argument proves that these denials are false. In the recording, Will—citing a Florida case that applied Korematsu v. United States—asked the court to hold that “There are times when civil liberties need to be temporarily suspended… for the greater good.”
This is the legal theory that Will was asking the court to apply.
He noted that, under the theory he urged the court to adopt, even “fundamental rights such as free speech” may be “suspended” in an emergency. He argued that courts should not entertain constitutional challenges at all during a state of emergency if the government is acting “in good faith.”
The court’s own order in Binford confirms all of this. Page 10 states that Will argued “during a state of emergency, executives are granted broad latitude to suspend civil liberties.” Nearly identical statements appear on pages 6, 11, and 16.
Who bears the burden of proof here? If Judge Will is not confirmed, he continues as a respected judge and will likely be nominated again. But if conservatives are right and Will is confirmed, we can expect to lose every major constitutional case in New Hampshire—from parental rights to free speech and religious liberty—for many years. There is no reason for the Executive Council to take this risk.
The vote is tomorrow. Call your Executive Councilor now and tell them to vote no on Judge Will’s confirmation. You can find your councilor here.