Former Business Lobbyist Denied Important DOJ Role

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.

Comments

[waltn]

I really respect Obama and his administration to sticking to their guns on the unprecedented, needed, and welcome ethical reform related to lobbying and the White House. This is so refreshing. Even through they've stumbled a bit with some Cabinet nominees, I think this type of historical precedent is critical and hugely important for the future of America. Bad corporations (or corporations that eventually become bad) generally reek from the top and it travels to the bottom. Obama is setting a huge example here and I only pray that it will be carried on throughout government in the years to come.

[ched]

Thanks, Ian, for shedding a little light on the racket known as arbitration. Most folks think, "hey, it's like court, except faster and easier, without all the rules." WRONG.

Big companies slip arbitration clauses into nearly every consumer contract out there, effectively requiring anyone who wants a cell phone or credit card to sign away their legal rights in favor of the big companies who LOVE arbitration, where they ALWAYS win (since they keep the private arbitration courts well fed) and where collective legal action is barred. And really, are you going to pay thousands of dollars to a private court to decide a dispute over, say, a couple hundred bucks (as most consumer fraud cases involve)? Of course not.

Fortunately, more and more state and federal courts (the REAL ones, not phony arbitration courts) are recognizing the phony bank-owned arb courts for what they are, and ruling that arb clauses in consumer contracts are unconscionable and therefore unenforceable.

Still, far too many state and federal courts still think arbitration is harmless, and enforce the arb clauses buried deep in the legalese of every consumer contract. Which is why posts like this are important. Keep spreading the word!