Likely Justice nominee faces hurdle


The leading candidate to head the Justice Department office that oversees legal policy and judicial nominations recently has been a lobbyist for several business clients, including the U.S. Chamber of Commerce, and would require a waiver from the Obama administration’s recently imposed ethics rules.

The likely nominee to head Justice’s Office of Legal Policy, Mark Gitenstein, worked as a lobbyist for the chamber 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.


If named by President Obama, Gitenstein would be another appointee who violates the White House’s ethics rules, which prevent anyone who has registered to lobby in the last two years from working in a related area of the administration. In an interview, Gitenstein said he could not comment.

But several administration and congressional officials confirmed that Gitenstein is at the top of Obama’s list for the job.

One U.S. Senate official who worked closely with Gitenstein said that he had openly discussed his pending move to the Justice Department with former colleagues, speculating on whom he might bring from Mayer Brown and perhaps also from Biden’s former Senate staff.

Biden was a senior member and for eight years chairman of the Senate Judiciary Committee, and Gitenstein was chief Democratic counsel on the committee from 1981 to 1989. He has been a close political and legal advisor to Biden ever since.

“It’s all but a done deal,” said the Senate official, who spoke on the condition of anonymity given the sensitivity of pending White House nominations. “He’s already placing people there, which he would not be able to do it if he were not the guy taking over there.”

Already, one of Gitenstein’s colleagues at Mayer Brown, Rajesh De, has joined the Justice Department’s Office of Legal Policy, the Senate official said.


If nominated, Gitenstein would need confirmation by the Judiciary Committee.

The possibility of Gitenstein’s selection has begun to alarm some Obama supporters on the left. One reform organization, Public Citizen, this week launched a campaign against him, urging Obama not to go forward with the nomination.

“The American people deserve better than to have an opponent of their legal interests placed in a key Justice Department policy position,” said David Arkush, director of Public Citizen’s Congress Watch in a letter to the president.

A White House spokesman said he could not immediately comment on the issue, and Justice Department officials said they could not discuss pending nominations.

If nominated, Gitenstein would require a waiver from the ethics rules. The White House has already acknowledged the need to exempt several high profile positions, including that of William Lynn III, recently a lobbyist for defense contractor Ratheon Corp., who was named to the No. 2 job at the Pentagon.

Jeff Connaughton, a former close colleague on Biden’s staff, defended Gitenstein and said his lobbying efforts were no different than those of most lawyers in Washington who go in and out of government.

“If we are going to disqualify every lawyer from defending corporate clients, that is going to cut quite a swath through the bar association. Where he needs to recuse himself, Mark has said he will recuse himself, consistent with the Obama policy,” said Connaughton, who is chief of staff to Biden’s replacement from Delaware, Sen. Ted Kaufman.


“I know people have objections to his clients,” said one Justice Department official. “But if he ends up being nominated and is confirmed, he will not be involved in any of the areas on which he lobbied for two years.

“He’s done a lot of things over the years. Lobbying for the chamber isn’t the only thing that he’s done,” the Justice Department official said of Gitenstein, speaking on the condition of anonymity, citing similar concerns about sensitive White House personnel issues.

The Office of Legal Policy is a little-known but enormously powerful unit. It has primary responsibility for advising the administration on judicial selection and helping to shepherd judicial nominees through the Senate. It was established in 1981 as the principal Justice Department office to plan, develop and coordinate the implementation of major policy initiatives of high priority to the department and to the administration.

Senate records compiled first by Public Citizen show that Gitenstein was registered by Mayer Brown to lobby on behalf of the chamber, Merrill Lynch & Co., Ernst & Young and other corporations on issues including accounting standards, securities litigation and wireless regulation.

For the chamber, the disclosure forms show that he concentrated on legal issues that would likely confront any judicial nominees: class-action and other legal reforms, and the question of federal preemption of lawsuits filed in state courts.

These have been the top legal issues pushed by the business lobbies in Washington recently. Justice Department sources said that Gitenstein’s nomination was expected in the near future and considered all but assured, in part because he is close to Biden. After leaving Capitol Hill, Gitenstein, like so many others in Washington, moved to a blue-chip lobbying and law firm advising clients on issues that he dealt with as a public employee.


Gitenstein ceased his work for the chamber last summer when he took a leave from his law firm to work for the Obama-Biden campaign.

Despite Gitenstein’s proximity to business interests in recent years, the chamber did not push for his appointment and, according to a spokesman, has not communicated with him since his leave.

The chamber backed judicial nominees including Chief Justice John G. Roberts Jr. and Supreme Court Justice Samuel A. Alito Jr., who were considered friendly to business on judicial issues. Their nomination was opposed by Obama when he was in the Senate.