Gov. Kelly Ayotte says Superior Court Associate Justice Daniel E. Will is a solid conservative who “will uphold the rule of law and our Constitution” as the state’s next associate justice on the New Hampshire Supreme Court.
Former state Supreme Court Chief Justice Bob Lynn (R-Windham) says Will would “make an outstanding Supreme Court justice. I congratulate Gov. Ayotte for once again hitting a home run with her latest judicial nomination.”
But Cornerstone Action, “the voice for Christians in Concord,” has a very different take. “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.”
Will is Ayotte’s pick to fill the vacancy that will be created when scandal-scarred Justice Barbara Hantz Marconi retires next month. If confirmed by the Executive Council, Will would become Ayotte’s second appointment to the five-member high court. Ayotte won conservative kudos with her first nominee, Bryan Gould, who was confirmed in September 2025.
So is Will, who served as an associate justice of the New Hampshire Superior Court and Gov. Chris Sununu’s solicitor general, a conservative jurist or an existential threat to the New Hampshire conservative movement?
Longtime attorney and GOP strategist Jim Merrill is solidly in the first camp.
“I have been privileged to know Judge Will for 25 years. He is an outstanding attorney with impeccable credentials and an admirable commitment to public service,” Merrill said Thursday.
“However, as skilled a professional as Judge Will is, he is an even better person whose reputation for integrity makes him highly regarded by all who know him. I trust Judge Will, and I know he will uphold our Constitution and serve as he always has, with principle and honor.”
Former Rep. JR Hoell, founder and treasurer of RebuildNH, takes the opposite view.
“Opposing a judicial nominee is not a step we take lightly. But Judge Will has already demonstrated that he views constitutional rights as contingent on the government’s convenience. That is incompatible with the role of a Supreme Court justice, whose duty is to restrain power — not excuse it.”
And that claim — that Will argued the Constitution should be suspended during the COVID-19 health emergency — is at the center of the debate over his nomination.
In a 2021 op-ed for NHJournal, Hoell wrote that “Will was the leading architect of a dangerous theory adopted last year by some New Hampshire courts; namely, that constitutional rights can be ‘suspended’ during a State of Emergency.”
Executive Councilor Dave Wheeler has already announced he is voting against Will’s nomination over this issue, as he did when Will was nominated to the Superior Court.
Will’s supporters say this is both untrue and a gross misrepresentation of Will’s record as solicitor general.
“Any suggestion that Dan Will is an activist who would violate the New Hampshire and U.S. Constitutions is a baseless slander,” said Drew Cline, president of the free market Josiah Bartlett Center for Public Policy. “He’s a committed constitutional conservative, as anyone who’s ever spent any time discussing legal issues with him would know.”
It’s true that Will’s job was to defend the Sununu administration’s COVID-19 emergency policies in court, including a ban on “scheduled gatherings of 50 people or more,” including for religious ceremonies.
That ban was challenged in court, and Will won the case for the state of New Hampshire, which was his job as solicitor general.
Rather than seeing that as an endorsement of his skills and service, Wheeler says Will should have resigned as solicitor general rather than represent the Sununu administration’s position.
“If you’re asked to suspend the Constitution, why would you want to stay in that job?” Wheeler told the New Hampshire Bulletin. “How could your conscience allow you to do that?”
Lynn says Will’s critics are getting the facts wrong.
“At no point did the state call for suspending the Constitution, nor did Dan Will or anyone else at the Attorney General’s Office suggest that constitutional rights could be set aside in an emergency,” Lynn said.
Will’s supporters have expressed frustration with the attack from the right on a jurist who, they argue, would be a huge step up from Hantz Marconi and would give conservatives more intellectual heft when issues like Claremont and education funding come before the state’s top court.
“He did his job for a Republican governor, and they’re attacking him for it. It’s crazy,” one Republican State House insider told NHJournal. “When was the last time they (Cornerstone) attacked a Democrat?”
Advocates on both sides of the debate are urging their supporters to contact their Executive Councilors and express their views on Will’s nomination. But both sides agree the decision will come down to one person: Councilor John Stephen. Assuming Democrat Karen Liot Hill casts a partisan vote against Will, Stephen’s vote would be key to getting the three he needs for approval.
For his part, Will said he was honored by the nomination and pledged to be impartial if confirmed.
“Granite Staters expect fair, impartial decisions from their Supreme Court,” Will said. “If confirmed, I will strive each day to meet that expectation, uphold the rule of law, and help resolve disputes fairly and expeditiously.”