Concord, NH — At Cornerstone, opposing a judicial nominee is not a decision we take lightly. As New Hampshire’s only litigation nonprofit on the political right, opposing a justice’s confirmation means alienating the very judges we must practice in front of.
Today’s news that Governor Ayotte has nominated Judge Daniel Will to the New Hampshire Supreme Court leaves us with no choice but to directly and strongly oppose his confirmation.
If the Executive Council confirms Will, New Hampshire conservatives can expect to lose on every major state constitutional issue—from parental rights to free speech and religious liberty—until at least 2031. Conservatives have nothing to lose: we must relentlessly oppose Will’s confirmation and strongly call on our Executive Councilors to reject his nomination.
During the Covid shutdown, Daniel Will—then New Hampshire’s Solicitor General—was, in the words of former legislator JR Hoell, “the leading architect of a dangerous theory adopted last year by some New Hampshire courts… that constitutional rights can be ‘suspended’ during a State of Emergency.”
Will argued and persuaded some judges that “during a state of emergency, executives are granted broad latitude to suspend civil liberties in order to address the emergency,” court records show. As a result, Granite Staters were effectively barred from bringing constitutional suits to protect their right to free speech, right to bear arms, right to trial by jury, or any other right. A Republican legislator warned that Will’s theory gave the executive branch “absolute power” and left our rights “at the mercy of the current governor.”
In 2021, the New Hampshire House denounced Will’s argument in legislative findings, stating that the Solicitor General had “disturbingly asked the New Hampshire superior court to hold that civil liberties are suspended due to the state of emergency.”
Republican Senator Sharon Carson, now Senate President, also denounced the theory on the Senate floor, pointing out that it had been the legal basis of Japanese internment.
It would be alarming enough if Judge Will had simply promoted a jurisprudence of absolute power. What most compels Cornerstone to speak out, however, is the fact that Judge Will repeatedly lied to the Executive Council during his Superior Court confirmation hearing.
Facing vocal opposition from ReBuild NH and other conservative groups, Will knew that he would be asked questions about his calls to suspend constitutional rights. Rather than qualify or explain the argument, however, Will simply “acted like he had no idea what the House was even talking about,” Hoell has written.
Although Cornerstone did not oppose Will’s confirmation at the time, we watched with alarm as he tried to gaslight the Executive Council, insisting that “I have never made that argument” and refusing to give any further explanation. Court documents, including Will’s own signed pleadings, showed that he made exactly that argument.
Councilor Dave Wheeler, the only Executive Councilor to vote against Will’s 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,” Wheeler said.
The warning signs are clear. Judge Will’s tenure would be characterized by a total disinterest in originalism, an automatic deference to government officials, and the cynical dismissal of litigants’ constitutional claims.
Our state Supreme Court is more important than ever. The federal First Circuit Court of Appeals is now the most liberal federal court in America, leaving the New Hampshire Constitution as the only real bulwark of our fundamental rights. If Judge Will is confirmed, the five-justice New Hampshire Supreme Court will have three judges who simply will not side with conservatives in any contentious constitutional dispute.
For years, Republican governors in New Hampshire have largely appointed liberal Republican judges. Conservatives, hampered by our fear of rupturing relationships in a small state, have passively allowed this to happen. Yet Will’s confirmation would be a bridge too far, tilting the ideological balance of our state Supreme Court to the left of Massachusetts’ high court for years to come.
This fight was avoidable. Over the past year, a coalition of conservative groups—following the example of the Federalist Society—vetted possible judicial nominees and offered a list of proven conservative state judges and qualified attorneys to the Council and to Governor Ayotte’s nominating committee. Unfortunately, this proactive strategy did not succeed.
Conservatives can no longer be held back by our fear of creating division within the Republican coalition. Division is the price we must pay if conservatives do not want to lose every contentious constitutional case for years to come. Call your Executive Councilor now (you can see a map also here) and tell them to vote no on Will’s confirmation.
Additionally: watch our short, educational video on the danger of this nomination and share it with others!
About Cornerstone
Cornerstone Policy Research (CPR) is a 501(c)(3) nonprofit organization focused on education, research, and legal advocacy. CPR works in the courts and in public discourse to defend religious liberty, uphold First Amendment freedoms, and strengthen the rights of people of faith.
Cornerstone Action (CA) is the affiliated 501(c)(4) advocacy arm. Cornerstone Action is the voice for Christians in Concord, working to advance legislation that reflects these values and supporting political candidates who stand firm for life, family, and religious liberty.