Daniel Will was confirmed to the New Hampshire Supreme Court by the Executive Council in a 4 to 1 vote Wednesday, overcoming concerns from some conservative activists about Will’s previous legal work during the COVID-19 pandemic.
Will was appointed as the first solicitor general in New Hampshire history by former Gov. Chris Sununu in 2018, and in 2021, was confirmed to a position as a superior court judge.
Gov. Kelly Ayotte nominated Will to the state’s highest court, calling him a “qualified, constitutional conservative.”
Executive Councilors John Stephen, Janet Stevens, Joseph Kenney — all Republicans — backed Will’s nomination, as did the lone Democrat on the council, Karen Liot Hill, who said Will has the “intellect and humility” to serve on the state Supreme Court.
Executive Councilor David Wheeler made his opposition to Will’s nomination clear following Ayotte's announcement of his selection last month. He criticized Will’s work defending Sununu’s pandemic-era executive order that capped public gatherings at no more than 50 people. Many religious conservatives viewed that public safety order as an infringement on their constitutional rights.
“The Constitution is fundamental. We all took an oath to the Constitution,” said Wheeler on Wednesday. “It cannot be suspended.”
Will is Ayotte’s second nomination to the New Hampshire Supreme Court, along with Justice Bryan Gould. He will fill the seat vacated by Justice Anna Barbara Hantz Marconi, who is reaching the mandatory retirement age of 70 years old. Hantz Marconi has not heard cases since October, following the conclusion of her criminal trial in which she pleaded no contest to a misdemeanor for attempting to influence an investigation into her husband.
With Will’s confirmation, the balance on the court remains squarely in favor of Republicans. Sununu and Ayotte have nominated all five of the sitting justices.
Will, who is 59, lives in Loudon with his wife, and has two daughters. A practicing Catholic, Will told councilors during his confirmation hearing last week that the executive orders he defended in court limiting public gatherings affected his ability to worship, as well. But Will defended his handling of that executive order, stressing that he did not support suspending constitutional protections, as his critics have alleged.
Executive Councilor Stephen said that as solicitor general, Will was required to defend the governor’s orders. “That was his job,” Stephen said. He told his colleagues he believed Will was a ‘textualist’ who would rely on the written word of the constitution and laws to guide his decision-making.
