Attorney’s public defender past would offer Supreme Court new perspective, advocates say

Michael Noriega would be the first former public defender to sit on the New Jersey Supreme Court if he wins confirmation from the Senate, and a bevy of advocates and legal practitioners said his perspective would be overdue.

Gov. Phil Murphy’s choice of Noriega to sit on New Jersey’s highest court comes amid a record-setting spate of public defender judicial nominations by President Joe Biden, who has now nominated 37 former public defenders to federal judgeships, according to liberal judicial advocacy group the Alliance for Justice. One, Ketanji Brown Jackson, is now the first former public defender to sit on the U.S. Supreme Court.

Supporters of the shift point to research that shows a different judicial makeup alters sentencing decisions, with former public defenders often issuing shorter sentences and fewer sentences that involve incarceration.

“There’s no experience like sitting next to a person in court whose life or fortune is in your hands,” said former Justice Barry Albin. “You see the world from that defendant’s perspective, and you know what the high stakes are.”

Albin, who stepped down from the high court upon turning 70 last July, worked as a defense attorney, prosecutor, and civil rights litigator, among other things, before ascending to the bench (he now chairs the appellate practice of Lowenstein Sandler LLP). He stressed the importance of diverse professional perspectives on the court, noting his own allowed him to aid his fellow justices during his tenure on the bench.

“I think it’s particularly significant on the New Jersey Supreme Court where you have just seven people,” he said. “Diversity in every respect, but in viewpoints and experiences, is really helpful because it helps inform other members of the court of experiences that they may not have had.”

Most of the sitting members of the New Jersey Supreme Court served as prosecutors or civil litigators before ascending to the bench. Justice Rachel Wainer Apter headed the state’s Division on Civil Rights and was a senior staff attorney for the ACLU.

Murphy, a two-term Democrat, announced on May 15 that Noriega, now a partner at the law firm headed by Sen. Jon Bramnick (R-Union), is his choice to replace Albin on the seven-justice high court. Introducing Noriega, Murphy praised public defenders for seeing “firsthand how the law impacts ordinary people.”

The choice needs approval from the Senate Judiciary Committee and the full Senate.

Joseph Krakora, who leads the state Office of the Public Defender, said he does not believe Noriega joining the Supreme Court would radically alter its decision-making.

“The Supreme Court of New Jersey, in my view, has been very fair,” Krakora said. “We’ve had a lot of success on appeals in the court. The court has always treated our lawyers with a great deal of respect, even deference.”

If Noriega, a former colleague of Krakora’s, fills the seat once held by Albin, that would likely keep the court’s decisions largely consistent with those under its previous composition, Krakora said. Albin was broadly considered the court’s most liberal member.

Other former New Jersey public defenders have previously been elevated to Superior Court judgeships, Krakora noted.

Public defenders can provide perspectives not offered by those with experience as criminal defense attorneys because the former typically have larger caseloads, Albin said.

Their clients are also typically less wealthy, added Marleina Ubel, a policy analyst for progressive think tank New Jersey Policy Perspective. That segment of the state’s population might be aided by the perspective of a judge who has worked in a public defender’s office, Ubel said.

“If you have judges and all of the judges have been prosecutors, and none of them have ever been on the other side — have ever been in a situation where they are defending usually vulnerable clients — you might not know what that’s like,” she said.

Biden’s nomination of 11 former public defenders to U.S. Circuit Courts, nine of whom have been confirmed so far, surpasses the former record of five set under President Barack Obama. In total, 29 of the former public defenders nominated by Biden to federal courts have been confirmed by the U.S. Senate, Alliance for Justice says.

Two of those judges, Jackson and Circuit Court Judge Sarah Merriam, have been confirmed to two separate judicial positions under Biden.