Supreme Court nominee lays out philosophy, says he won’t recuse himself from school funding case

Superior Court Judge Daniel Will appears at an Executive Council hearing on his nomination to the New Hampshire Supreme Court, Feb. 6, 2026. (Photo by Ethan DeWitt, New Hampshire Bulletin)

Judge Daniel Will would likely not recuse himself from a challenge to New Hampshire’s school funding model if confirmed to the state Supreme Court, he said Friday, despite having previously argued against a similar lawsuit for the Attorney General’s Office.

“I can’t sit on any case that I participated in,” Will said. “But that doesn’t mean that I can’t sit on any case in a subject matter of a case that I participated in. That’s how I look at it.”

The pronouncement came during an hours-long hearing on Will’s nomination held by the Executive Council, which must vote on whether to confirm him.

Before he became a superior court judge, Will was the state’s solicitor general from 2018 to 2021, a role that made him the primary attorney defending the state from lawsuits. As part of that job, he anchored the Attorney General’s Office’s arguments against Contoocook Valley School District v. New Hampshire, the lawsuit known as ConVal brought by school districts alleging that the state’s funding to schools is unconstitutionally low. 

Though the Supreme Court decided that case in 2025, ruling in favor of plaintiffs, a second case, Rand v. State of New Hampshire, is likely to be appealed to the Supreme Court this year. That case was brought by a group of property-tax payers who also argue the state adequacy payments to schools is unconstitutionally low.

Asked by Republican Councilor John Stephen Friday whether his work opposing the ConVal case would require recusal in the Rand case, Will said no, arguing that recusals apply to specific cases, not issues. 

“I don’t believe I would be recused from other cases raising those types of challenges,” he said, speaking of school funding lawsuits. “I just can’t be involved in that particular one.”

A decision not to recuse himself in Rand would align Will with Supreme Court Chief Justice Gordon MacDonald, who chose not to participate in last year’s ConVal ruling due to his prior work defending against the lawsuit as attorney general but who has not similarly recused himself from Rand, a lawsuit filed after MacDonald left the Department of Justice.

And it could shift the recent legal trajectory of the school funding lawsuits. 

Democrats and school funding advocates have hailed the Supreme Court’s 2025 ConVal decision and called on lawmakers to respond with serious proposals to boost state funding. But that decision happened under unusual circumstances: MacDonald and Associate Justice Anna Barbara Hantz Marconi had been replaced by two alternate justices from lower courts, both of whom ruled with the 3-2 majority. And the third justice in that majority, James Bassett, retired last August. 

A future ruling on the Rand case with Will and MacDonald taking part could look different. 

Will’s comments on his recusal policy came as part of a wide-ranging hearing in which he presented a judicial philosophy rooted in textualism and a dedication to applying the letter of the law and constitution to each case.

The Executive Council will vote on Will’s confirmation in the coming weeks. He was nominated in January by Gov. Kelly Ayotte ahead of the departure from the court of Hantz Marconi, who has reached the mandatory retirement age of 70. 

Asked again and again about his approach to writing opinions and his commitment to avoiding bias, Will said a simple approach would dictate every decision. 

“The Legislature speaks through the words of its statues, and it’s up to the judge to faithfully interpret those statutes,” he said. “And the same is true with constitutional text as well.”

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In that respect, Will says he attempts to follow the example of former Supreme Court Justice Antonin Scalia, who he identified as the jurist he respects the most. 

“I by no means hold myself as on his level, intellectually or in any other way,” he said, “but I do aspire to having a level of discipline and rigor in my analysis that really tries to understand what the tests that apply to a given case are saying and what they mean.”

Will said repeatedly he believes all state Supreme Court decisions should be rooted in the New Hampshire Constitution and state statute, especially in cases where the state constitution provides stronger rights than the U.S. Constitution. He said he would follow the doctrine of “stare decisis” — in which courts defer to existing precedents — but argued that the doctrine can’t be used as a “straitjacket” that preserves wrongly decided opinions. 

And he elaborated on his approach to recusals. Given the five years that have passed since he last worked as an attorney, there would be few if any active lawsuits that would require his recusal, Will said. However, he would recuse himself from cases involving attorneys or clients that he is friends with, he said. And he added there would likely be cases in which he believed he could rule fairly but might choose to recuse himself anyway to avoid the appearance of a conflict. 

While the Supreme Court’s code of conduct provides guidelines for when justices should recuse themselves, it is ultimately at the discretion of the judges themselves. 

Dozens of people, many attorneys and judges, testified in support of Will’s nomination, calling him smart, compassionate, and dedicated to his work.

“He is the first person at the office and was often the last person to leave,” said Superior Court Judge Anne Edwards. “… As a judge, he was regularly in Stratford County (Superior Court) at six o’clock, quarter to seven when court ended at four, and that’s because he was working hard. I know that he’s going to do that at the Supreme Court.”  

Emily Garod, the Strafford County attorney, praised Will’s ideological rigor.

“I can tell you that he has ruled many times not in my favor,” she said. “Many times I have asked him for things that he has not given me. But I never walked away from that forum feeling confused or feeling like I wasn’t listened to or that I wasn’t heard. And when I read his rulings, and I understand his rulings, I know that he followed the law to the way that he interpreted it.” 

But a smaller faction of people testifying raised concerns about one piece of Will’s legal career: his 2020 defense as solicitor general of then-Gov. Chris Sununu’s emergency order shutting down public gatherings during the COVID-19 outbreak. 

Patricia Meyers gave voice to those concerns, saying Will’s argument for a policy that prohibited church services deprived residents of their rights. “It isn’t just about churchgoing, this issue with the unconstitutional suspension of our rights,” she said. “It’s about the presumption that the rights given to us by God can be suspended by anyone. That’s the issue. I’m very concerned about that. I’m very concerned about some of his decisions.”

And an attorney for the conservative advocacy organization Cornerstone, Ian Huyett, also voiced opposition to Will based on his defense of the 2020 emergency order.

“As an attorney practicing in a very small state, I am not looking for opportunities to testify against a sitting judge in a room full of judges,” Huyett said, referring to the room of Will’s supporters. “We are here only because we believe on the basis of Judge Will’s past record, his statements in these hearings, and the lack of contrary evidence, that his confirmation would mean claimants on issues like parental rights, religious liberty, or free speech would lose for years to come.” 

But Rep. Bob Lynn, a Windham Republican and a former Supreme Court chief justice himself, spoke in favor of Will and dismissed the criticism. 

“The positions that he advocated in that litigation tell us nothing about his personal views,” said Lynn, who sits on Ayotte’s Judicial Selection Committee, which recommended Will for the court. “If we want to preserve the rule of law and the fairness of our system of justice, we cannot subscribe to the view that lawyers should be punished in their careers for their legitimate legal advocacy in support of causes that may be unpopular at the moment.”

He added: “Dan Will is a first-rate candidate for the New Hampshire Supreme Court, and I urge you to confirm him.”