David Sirota had an excellent post last night on Open Left on an L A Times' report that President Obama is planning to appoint Mark Gitenstein as head of the Office of Legal Policy, a position that vets all potential federal judges. To appoint Gitenstein to any post in the Justice Department requires a waiver, since he was a registered lobbyist from 2000 to 2008 for the US Chamber of Commerce. During that time he was the primary operator in pushing through legislation to gut consumer class actions in the federal courts. Public Citizen has prepared an extensive story about Gitenstein's career of horrors.
A little research turned up personal connections to Sen. Kaufman, Biden's stand-in. Gitenstein was apparently a Senate staffer with ties to Biden before he went over to the Dark Side. He's been a member of the Obama Presidential transition team. They ought to have super-strict independent review of potential appointments of transition team members to key positions.
This guy's career after he left the Senate staff is so bleak he's a prime target for push-back. His appointment would likely be disastrous.
As a lawyer who represented employees for many years, I can assure everyone who doesn't already know that this guy has worked for one of the most sleazy operations in the legal sphere for eight years.
Beginning in 2000 (when Gitenstein joined their lobbying effort) the Chamber of Commerce has worked tirelessly to corrupt the process of electing state court judges in order to place business-friendly judges on the highest state appellate courts. The Chamber has actively recruited candidates and flooded the campaigns for popularly elected judgeships with record amounts of cash. According to data compiled by Open Secrets, the Chamber's "neuter the courts" subsidiary, the Institute for Legal Reform (ILR), spent more than $84.5 Million on lobbying in the period from 2002 through 2005, and another $78 Million in 2006-2008. The ILR lobbying budget for 2002 through 2005 was approximately as large as the Chamber's lobbying budget for all other purposes combined. Gitenstein was registered as outside counsel and lobbyist for the Chamber until August 2008; in 2008 the ILR spent over $29 Million on lobbying efforts. According to Public Citizen, over $6 Million of that lobbying money was paid to Gitenstein's law firm during the time that he was registered as a lobbyist for the US Chamber of Commerce.
The Chamber has achieved many successes in the last eight years, e.g., in Ohio. Every one of those successes was to the detriment of employees and consumers. I don't think that Chamber of Commerce judicial candidates are particularly friendly to regulations issued to protect the environment, either.
In other words, from 2002 through 2008 a primary goal of the US Chamber of Commerce has been to roll back a half century of judicial remedies that legislatures and courts had provided to average citizens after World War II. And Mark Gitenstein was a key player in implementing (and probably in planning) that strategy.
Mark Gitenstein played a key role in rolling back the legal protections that Obama voters used to have. Particularly he helped to roll back the legal protections provided to citizens as consumers, patients, workers or consumers injured by defective products. He directly attacked one of the most important vehicles for consumer protection, the class action in federal court.
Mark Gitenstein is not Change We Can Believe In!!
This myopic proposed nomination needs to be shot down with as much firepower as we can throw at it. This proposed nomination is inconsistent with at least the following principles espoused by Obama (and probably many more):
- Not hiring lobbyists: This is the most fundamental and obvious. Also, there is no reason whatsoever to consider a waiver in this instance. There are dozens of potential candidates who are equally (probably better) qualified in terms of broad knowledge of the most controversial and partisan legal issues that are addressed by federal judges.
- Making government work more for the common man, the average worker: The Chamber of Commerce has elected state appellate judges who have not been friendly to employees.
- Supporting policies that will help to level the playing field between business and labor, a forum that has tilted sharply in favor of business for almost 30 years - there is a lot of ground to make up, and having "business friendly" judges on the federal bench will make it even harder to move in the direction of a level playing field.
- Support for the Lilly Ledbetter Act (and similar legislation on the civil and employment rights of individual workers): This nominee would not be inclined to clear any judges who will give a fair construction to that important legislation. After having 25 years of domination of the federal courts of appeals by Reagan-Bush conservative ideologues, it is critical that Obama's judicial appointments be targeted on professionals who are at least fair, and preferably liberal. The Ledbetter Act simply restored what had been the settled understanding of the law on paycheck discrimination for 25 years, until the 5-4 conservative majority on the Court construed the relevant statutes so narrowly that the Court held the company was protected by the statute of limitations even though it had concealed its pay discrimination from Ms. Ledbetter for almost 20 years!
- Having a Supreme Court that is balanced on business issues. As numerous commentators noted, at the end of the 2006-2007 Supreme Court term the Court decided by a 5-4 vote a series of half a dozen or more cases that broke sharply in favor of business interests. These included one anti-trust (?) decision in which Chief Justice Roberts broke his promise to the Senate Judiciary Committee that he would respect stare decisis (i.e., the authority of prior decisions by the Supreme Court, a particularly strong factor in construing federal statutes). As Justice Scalia noted in that case, Roberts voted to over rule a Supreme Court precedent of longstanding, without even admitting that he was voting to overrule it. Scalia was highly critical of Roberts' hypocrisy in that case.
- These 5-4 decisions ran the gamut from a bad decision on wetlands legislation (environment) to over-ruling the anti-trust case that business did not like. The four judges voting to uphold legislative regulation of businesses were Stevens, Souter, Ginsberg & Breyer. Any of these, but particularly the first three, may be replaced within Obama's first term. If Obama appoints Supreme Court judges that would be approved by the Chamber of Commerce, he will create a Court like the Supreme Court that gave FDR such fits throughout FDR's first term. He should be reversing the trend toward judges who are business-friendly, NOT reinforcing that trend!
- Leading a Green Revolution in US policy on industry and the environment. The Chamber of Commerce has never seen a disputed environmental regulation that it didn't hate.
This is just an extremely rough draft of a real critique of this abysmal nominee. Perhaps a better organized, better written, and more fully documented diary entry later...