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Ian Millhiser Headshot

Former Business Lobbyist Denied Important DOJ Role

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Early this month, the White House floated Mark Gitenstein as a potential nominee to head the Department of Justice's Office of Legal Policy, the office of DOJ responsible for selecting new federal judges. Gitenstein, to his credit, has a truly heroic record on civil rights and civil liberties--including his time spent working for the Senate Judiciary Committee where he was instrumental in blocking the nomination of ultra-conservative Judge Robert Bork to the Supreme Court. As Roll Call reports, however another part of his resume ultimately scuttled his nomination:

Mark Gitenstein, the top choice to head the Justice Department office that oversees legal policy and judicial nominations, is no longer being considered for the position, an administration official confirmed.

Gitenstein, a partner at Mayer Brown, was initially thought to be a shoo-in to head the Office of Legal Policy, but his lobbying background, particularly his work for the U.S. Chamber of Commerce, helped scuttle his nomination.

The reform group Public Citizen launched a campaign in early February against Gitenstein's nomination, sending a letter to Obama that cited the nominee's work on legal reform issues as making him unsuitable for the job.

"This is someone who has lobbied on a set of legal issues that would be his domain at the office of legal policy, an important policy office," said David Arkush, director of Public Citizen's Congress Watch. "It's not just that he lobbied on those issues, but he would have to recuse himself from a lot of matters at minimum, which raises questions about whether he would be the right person for the job."

As a lobbyist for the Chamber, Gitenstein apparently lobbied in support of the Chamber's position on binding mandatory arbitration, an abusive practice---supported by the Chamber---which gives businesses an effective veto power over laws they do not want to follow.

Abusive arbitration forces consumers to sign away their right to hold a company accountable in court if it breaks the law---and instead shunts them into a biased, privatized forum. Virtually all banks, many employers and some nursing homes will even refuse to do business with you unless you sign away your power to hold them accountable for their actions. If you refuse to sign an arbitration agreement you can lose your credit card, lose your phone service, or even be fired.

And when you do sign, the company is free to violate the law with near impunity. According to one study, 94% of these arbitrations are decided in favor of the corporate party.

So the case of Mark Gitenstein presented an unusual dilemma for the Obama Administration. On the one hand, Gitenstein has a truly distinguished and progressive record as a Capitol Hill staffer, including an investigation into the FBI's illegal surveillance of Dr. Martin Luther King, Jr. On the other, he spent part of his career lobbying to preserve one of the business community's most abusive practices.

Ultimately, President Obama decided that the former was not sufficient to overcome the later. Hopefully, this decision will serve as a cautionary tale to other ambitious and talented individuals who, despite a long career of progressive accomplishments, are tempted to work in support of practices as abusive as binding mandatory arbitration.

Disclaimer: The views expressed in this piece are the author's own, and should not be understood as representative of any organization he may be affiliated with.