Mark Gitenstein for Office of Legal Policy

by: Natasha Chart

Fri Feb 06, 2009 at 05:00


From a letter to President Obama by respected legal professionals Larry Tribe, Abner Mikva, Walter Dellinger, and Christopher Schroeder, emphasis mine:


Recent news reports indicate that you are considering nominating Mark Gitenstein to head the Office of Legal Policy at the Department of Justice. At the same time, these reports have raised questions about whether his nomination would be consistent with your administration's ethics policies.

... In light of Mark's representations, the issue areas from which he will need to recuse himself will include the Federal Arbitration Act, private securities litigation, asbestos liability, regulation of the accounting profession, and matters related to the US-German Tax Treaty. ...


Gitenstein is a former lobbyist for the Chamber of Commerce and AT&T, among others, and do they ever want to kill any chance that the Arbitration Fairness Act might pass, this year or ever.

Natasha Chart :: Mark Gitenstein for Office of Legal Policy

Arbitration reform would prevent companies from forcing their customers or employees into binding mandatory arbitration agreements when they sign credit card, cell phone, nursing home, medical care or employment contracts. These agreements mean you can't go to court if you have a dispute, you have to go to a company-selected arbitration judge, someone who was neither elected nor selected by an elected representative, and be bound with no appeal to their decision. And I guarantee that you have signed at least one of these agreements.


Binding arbitration acts as a license for companies to shop for private judges in a parallel court system who depend on them for repeat business and a paycheck. If an arbitrator finds against their corporate customers they don't come back and they tell all their friends and they are done as an arbitration judge. There is effectively no appeal to the regular courts.


But it's really even a step farther. It's a license for judges on a corporate payroll to interpret and enforce laws (contracts) written by corporations. You step into a binding mandatory arbitration agreement, you might as well be living in the United States of AT&T, because the only point of the arbitration system is to protect corporate profit. Justice and individual rights hardly enter into it.


More of our social contract is covered by these agreements all the time. It's a quiet, private takeover of the function of the judiciary's role in consumer protection and employment agreements. It's a theft of democracy that excuses are made for because the courts are overburdened and underfunded; such is the story of all our public infrastructure.


A person's right to go to court shouldn't be something they're even allowed to give away before a dispute arises, in much the same way that people are not allowed to sell themselves into slavery or sell their votes. Even if they claim they really, really want to because they need the money, and it's not duress, honest. There are things that should never be for sale because it's wrong that someone could ask you to give them up when they have you at a disadvantage.


Indeed, maybe one of the Senators at the confirmation hearing can ask Gitenstein how he feels about the case of Jamie Leigh Jones, the Halliburton/KBR employee who was raped in Iraq, stuffed in a shipping container under guard to try keeping her quiet, and couldn't even sue for damages because of the arbitration agreement in her employment contract.


If he's in favor of this, Gitenstein shouldn't be anywhere near the Justice Department's strategic planning, nor the judicial hiring recommendations made by the OLP.


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Well, wait. (4.00 / 1)
If he indeed recuses himself from any such policy positions, and if a potential judge's stance on arbitration issue isn't used as a factor in vetting judicial nominations, then is this still problematic?  I have to say that while most endorsement letters don't sway me, having Tribe/Dellinger/Mikva on one does.

As an issue of corporate power, (0.00 / 0)
I'd consider it an indication that he's going to come down far more pro-business than many progressives would be comfortable with. And it isn't like he can just erase out of his head past knowledge of candidates who would put the interests of corporate persons ahead of actual persons. How can it be proved that it won't color all his hiring decisions?

I don't know who these endorsees are personally, but I do know who the Chamber of Commerce and AT&T are. He seems to have endorsed their causes of his own free will. If he's such a good lawyer, he can't have been so hungry for a job that he couldn't refuse work undermining the Constitution and the right of the public to go to court.


[ Parent ]
Well, then, some background. (0.00 / 0)
Ab Mikva's a former Chicago congressman, former DC Circuit justice, former White House Counsel (under Clinton) and one-time professor of mine.

Laurence Tribe is the leading liberal constitutional law advocate before the Supreme Court, a longtime Harvard lawprof (where he taught Obama).

Walter Dellinger was Solicitor General under Clinton.  Solid progressive.  

In general, OLP defers greatly to the home state Senators for nominations, and it's OLP's job to get them confirmed.


[ Parent ]
And with friends like that, (4.00 / 1)
he still couldn't find work outside the CoC and AT&T?

I'm sure they're all very good, respectable people. Just as I'm sure that I'm very tired of trusting recommendations like these, asking me to ignore worrying behavior because of the stature of the people making the request. Everyone who comes to the level of being considered or appointed to one of these posts has some handful of illustrious friends they can point to. Good for them.

But we seem to be living in a corrupt kleptocracy here, and it's people with illustrious friends that have got us into this mess. It's people who came highly recommended that are shoveling cash into the banks' bottomless gullets with one hand and cutting money for the poor with the other. I can look people up if I don't move in their circles, but my point is that I don't care who they are. I care what he's done. This isn't just some silly oversight with paying a nanny, either, it's a matter of substance.

Further, as Christy Hardin Smith pointed out, Gitenstein would have to recuse himself from the entire issue of tort law. That seems like a big deal to have a legal strategist heading up this office, when entire branches of law are closed to his involvement. Is there really no one else who's progressive in civil rights areas but didn't go work for some outfit with seriously questionable ethics?


[ Parent ]
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