Kia Franklin

Is Obama’s Office of Legal Policy Pick a TortDeformer?

From the LA Times:

The likely nominee to head [The Department of] Justice's Office of Legal Policy, Mark Gitenstein, worked as a lobbyist for the [Chamber of Commerce] between 2000 and 2008, helping his firm earn more than $6 million in fees, according to federal lobbying records. The business alliance has pushed the White House and Congress to appoint judges and enact legislation that would make it harder for plaintiffs to sue large corporations and collect large damage awards, raising concerns from some activists.

Gitenstein, a partner at the Mayer Brown law firm in Washington, was a longtime senior aide to Vice President Joe Biden. In recent years, he also has served as counsel to the chamber's Institute for Legal Reform, which pushed for changes in federal litigation rules and adding business-friendly judges to state courts.

The OLP advises the administration on judicial selection and plays a formative role in shaping and setting the administration's domestic legal policy initiatives. If appointed, Gitenstein would have to recuse himself from issues related to his lobbying on behalf of the business community, which means all sorts of tort "reform" issues. Is this possible? If you look at the scope of influence that the tort "reform" movement has had in discussions about legal "reform" and the civil justice system, I have trouble figuring out just how and when he'd not have to recuse himself.

Many people in the civil justice world are telling the President and the general public why they don't think that Gitenstein's recusal from blatantly tort "reform" issues does enough to ensure compliance with Obama's ethics standard. Public Citizen's David Arkush wrote a persuasive letter to the President, and below is an excerpt:

You have called for a legal system that shows compassion for those with relatively little power, but Gitenstein has lobbied to strengthen the legal rights of the powerful at the expense of the powerless. You have called for greater accountability in the financial services industry, but Gitenstein has fought accountability for financial institutions...

OLP’s role in judicial selection also makes Gitenstein an inappropriate candidate. The Chamber of Commerce has campaigned for more than thirty years to populate the courts with pro-business judicial activists—and in particular judges who enact its vision of “legal reform.” A lobbyist for the Chamber on those very issues should not be put in a position to influence the selection of judges. The appointment would create the appearance, if not the reality, that judicial nominees will tend to favor the powerful at the expense of ordinary Americans.

I also liked Natasha Chart's post over at OpenLeft:

[BMA is] 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.

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.

Truth be told, Gitenstein has got a heavy-hitter list of supporters due to his notable civil rights record, including Professors Laurence Tribe and Chris Schroeder, and Walter Dellinger, and Judge Abner Mivka. But as a respected colleague pointed out, while having a strong civil rights/civil liberties record is absolutely critical for this position, it is not the ultimate litmus test for whether he's a good fit for the OLP. Just as important is his stance on other civil justice issues like binding mandatory arbitration.

Indeed, binding mandatory arbitration isn't just a consumer issue. It's also a civil rights issue. So how can one fully support civil rights without also supporting a person's ability to enforce those protections in the public court system? Under binding mandatory arbitration "agreements" (although Fonza Luke's story reminds us that "agreement" is definitely a misnomer) employees' important civil rights claims are derailed and sent to often bogus "company courts" instead. What's the point of the law if it can't be enforced?

This nomination is definitely something to keep a close eye on.

Kia Franklin: Author Bio | Other Posts
Posted at 6:11 PM, Feb 06, 2009 in Business Culture | Civil Justice | Consumer Rights | Mandatory Arbitration | The Chamber of Commerce
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A much more thorough look at the man than my brief post. Good information.

What bothers me the most about this guy is that he'd need an ethics waiver to get the job. Come on Obama, are you telling me there's no one else in America who is qualified and doesn't need a waiver? Or is this guy just getting the job because he's one of Biden's buddies?

After Obama's comments during the debates about opposing trial lawyers, and now with these picks, I wonder: Does he just not have an appreciation for the importance of the civil justice system, or is it easier to be "bipartisan" by appointing corporate hacks that the Republicans will be OK with? How about putting some lawyers in at the DOJ who spent their lives working for public interest groups instead of corporations?

Posted by: Justinian Lane | February 7, 2009 10:38 AM

Get you facts straight, justinian. He would NOT need an ethics waiver, that is what the retraction in the LA times said. Check it out. "Justice appointee: An article in Thursday's Section A about Mark Gitenstein, reporting that he is the lead candidate to head the Justice Department office that oversees legal policy and judicial nominations, said his nomination would require a waiver from the Obama administration's ethics rules. The article should have said that it might require a waiver. As the article later stated, a Justice Department official said Gitenstein would recuse himself from issues that could pose a conflict due to his former lobbying, which the official maintains would make a blanket waiver unnecessary."

the work that Gitenstein did was in support of legal reforms to protect businesses, innovators and small investors. Some may disagree with the policy direction, as it is pretty centrist, but it was always ethical, above board and honorable.

I agree that you should keep a close eye on this nomination, but look at the facts. This is someone that is capable of doing the job and will do it with integrity. As the letter to the president said, "Mark has worked tirelessly to advance progressive values and the rights of all Americans. While in college, he fought for civil rights, working for the U.S. Civil Rights Division in Mobile, Alabama, to help dismantle its segregated busing system, and then for the McGovern Commission on Party Reform to increase access by women and African Americans in delegate selection. He worked for thirteen years on the Senate Judiciary Committee for then-Senator Biden, and as its chief counsel for eight of those years. As chief counsel he scrutinized judicial nominees of Presidents Reagan and Bush, seeking to ensure that those who were not committed to protecting the civil rights and individual liberties of all Americans were not confirmed. In that same position, he worked to protect the Civil Rights Commission and extend the Voting Rights Act. Earlier, as counsel to the Senate Intelligence
Committee, Mark played a leadership role in the oversight investigation of FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and of other civil rights and anti-war activists."

This guy isn't just another name. He is not amongst what you call the Corporate Hacks. He has spent his life working for what he believes in. Before you judge, make sure you know the facts.

Listen to David Brooks ""Of course, Obama asked for all this with his cynical promise to ban lobbyists from his administration. There’s a word for lobbyists: experts. Some are sleazy and many are quite admirable, but the idea of trying to run Washington without them is absurd. I assumed Obama understood all this and the campaign blather was just for show. But it turns out he’s created a climate of Puritanism in which any error is grounds for disqualification."

Posted by: Sarah | February 7, 2009 12:42 PM

Amen Sarah. Ditto on everything you said. Gitenstein is one of the most honorable, smart, and level-headed people I know. There are few people in this world who have more integrity than Gitenstein. He is a perfect candidate for this position in DOJ.

Posted by: crispay08 | February 9, 2009 10:28 AM

this exchange is informative. a person can be honorable, smart, and level headed, and yet take troubling positions on certain issues and need to be called out on it. yes, it is good to look at the facts about his record. the civil rights record is more than impressive. the tort "reform" record is far less than impressive. this complete picture is important.

you don't have access to enforcing your civil rights unless you have a civil justice system that is geared toward people and not corporations. so this tort "reform" record is important.

but, there is no such thing as the perfect politician. folks who supported president obama know this. his commitment, in general, to attending to the interests and needs of the public is demonstrated by things like his decision to become a champion of the ledbetter legislation. but he also voted in favor of tort "reform" (class action fairness act), and touted this distinction proudly as a badge of bi-partisanship.

so what do we do? shut up about it? rant and rave about it? pledge to pitch a fit when our representatives are working against our interests, and pledge to pat them on the back when they're doing right by us?

even if it turns out Gitenstein is the best available person for the job, he's not the perfect person for it. no one is. and our role as civically engaged citizens is to be ready to call people out when their politics are faulty. Gitenstein's politics when it comes to tort "reform", in terms of what he's advocated for as a lobbyist, are cause to give pause. and that's my lingering reservation w/ appointing Gitenstein--that when it comes to helping w/ the appointment of judges and the setting of a federal civil justice policy agenda, this past will inform the decision in ways subtle enough to not seem to require his recusal from the process.

Posted by: Kia | February 9, 2009 7:08 PM

Thanks for the info, Sarah. In my opinion though, anyone who takes Chamber bucks to lobby against the rights of injured people is a corporate hack. If MLK himself was alive and supported tort reform, I'd call him a hack, too. Doing good deeds in one arena doesn't cleanse you of sins in another.

A man who agrees with the Chamber's policy on civil justice shouldn't be anywhere near the DOJ. Perhaps someone should explain to him how many of the Chamber's policies hurt the African Americans he supported in other areas.

And Brooks is wrong - there are plenty of experts who aren't lobbyists. Most lobbyists in fact aren't experts, but are only pushing the opinions of experts who favor their employer. The one thing lobbyists are experts in is persuading legislators.

Posted by: Justinian Lane | February 10, 2009 6:44 PM

By the way, wanted to point folks in the direction of Public Citizen. Their website has lots of information about this issue.

Posted by: kia | February 11, 2009 4:27 PM

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.

Posted by: Ebooks | January 24, 2011 3:07 PM