Last Friday, the Executive Council held a hearing regarding Dan Will’s confirmation to the New Hampshire Supreme Court. As we will show, it is “an open and shut case.” The Executive Council must NOT confirm Will.
(1) The Democrats’ silence is deafening. … If Dan Will is a “constitutional conservative” as claimed by his supporters, then why aren’t the Democrats opposing his nomination? As you may recall, the Democrats’ opposition to Bryan Gould (Ayotte’s first nominee to the State Supreme Court) was apoplectic, even though Gould, in our opinion, was more of a John Roberts-type conservative than a constitutional conservative. (By the way, the people claiming that Dan Will is a “constitutional conservative” are the Republican Establishment/Insiders, not anyone who can credibly claim to be a constitutional scholar.)
(2) Where is the paper-trail? … Where is the hard evidence that Dan Will is a “constitutional conservative”? Where are the law review articles, the Bar Journal articles, the op-eds, the “friend-of-the-court” briefs that demonstrate that Will is a constitutional conservative? Will has been present during the “Claremont era”. Actual “constitutional conservatives” such as Eugene Van Loan, Edward Mosca, and Gregory Sorg left extensive paper-trails exposing the judicial activism of the Claremont decisions. We are not aware of a single instance when Will went “on the record” as opposing Claremont.
(3) There is also the claim that, in his capacity as Solicitor General, Dan Will defended a lawsuit challenging former Governor Sununu’s COVID-mandates by arguing that the government can suspend constitutional rights during an “emergency.” … We have reviewed the objection signed by Will and the court’s decision, and we believe it is accurate and fair to say that Will did indeed argue that constitutional rights can be suspended during an “emergency.”
Here are two key excerpts from Will’s objection:
Courts review laws and governmental actions that limit constitutional rights under a “strict-scrutiny” standard. The government must prove that the law or action serves a “compelling” governmental interest and that the law or action is the “least restrictive” way to achieve that interest. Otherwise, the law or action is unconstitutional.
Will, however, argued that the court should NOT review Sununu’s COVID-mandates under strict-scrutiny. Rather, he urged the court to apply a “good faith” test. As long as the government can show it acted in good faith and there is some factual basis to believe that the law or action was necessary to deal with the emergency, the court should uphold the mandate.
Needless to say, under the minimalist standard of review advocated by Will, the law or governmental action limiting a constitutional right will invariably prevail. So, while Will may not have expressly said that constitutional rights can be “suspended” in an emergency, he made the equivalent argument. This is why the court wrote that Will’s position was that constitutional rights can be suspended in an emergency:
(4) Has Dan Will been less than honest about his COVID advocacy? … Will is currently a Superior Court judge. His COVID advocacy came up during his confirmation hearing. Multiple sources indicate that Will gave less than an honest answer. For example, from Cornerstone:
In the face of all written evidence that Will did indeed argue that government can suspend constitutional rights by declaring an emergency, some of Will’s supporters have countered that Will was “just doing his job” by making the suspension argument. However, Will also argued that Sununu’s COVID-mandates passed constitutional muster under existing standards of review. There was no need, therefore, for Will to advance the suspension-argument to “do his job.” That Will nonetheless pressed the suspension-argument and, indeed, made it his lead argument is a preview of how Will would interpret the constitution as a State Supreme Court justice.
* * * * * * * * * *
The purpose of the Executive Council is to act as a check and balance on the Governor. The Executive Council elevating Dan Will to the State Supreme Court despite all the evidence that not only is Will NOT a “constitutional conservative,” but that he is an activist with dangerous views about the powers of government, would be profoundly disloyal to our constitutional system of government and profoundly disrespectful to the citizens of New Hampshire.
