Senate Judiciary Examines Big Government Lawsuits

By Bruce Sullivan | July 7, 2008 | 8:25 PM EDT

Washington ( - In response to what he said appears to be a growing tendency of the courts "to establish and enforce social policy preferences" instead of "the people through their elected representatives," Senate Judiciary Chairman Orrin Hatch (R-UT) held a hearing Tuesday to examine federal lawsuits against the tobacco industry and gun manufacturers.

Hatch said he is concerned that other industries, such as pharmaceuticals, automobiles, fast food and alcoholic beverages may soon be targeted by the Justice Department for similar litigation.

"The scope of these lawsuits are immense," Hatch said in his opening statement. "The courts indeed have never been considered the proper institution to determine policy," he added, referring to Federalist Paper #78 by Alexander Hamilton.

"The only proper role for the courts, therefore to Hamilton and other Framers, is to render 'judgment' by interpreting law in particular cases or controversies," said Hatch. "Using the courts to create or enforce policy objectives, no matter how worthwhile an end, distorts the constitutional system of separation of powers and weakens republican democracy," he added.

Under the Clinton Administration, the Department of Justice has pursued lawsuits against companies as diverse as tobacco, gun and computer makers to bring about regulations that Congress was unwilling to pass. Hatch said that right belongs to the elected Members of Congress and state legislatures.

Besides the federal tobacco suit, 29 cities and counties have filed suits against gun manufacturers claiming that they are responsible for increased criminal use of guns, Hatch said.

Sen. Mitch McConnell (R-KY) said that the wave of big government lawsuits under the Clinton Administration represents a "frightening trend" that benefits few people, except lawyers and bureaucrats.

"These suits are becoming the 'Great American Hoax' - pulled off by conspiring governments and trial lawyers," said McConnell. "The governments and trial lawyers talk about sympathetic victims, innocent children, and injured people, then they twist the law to file a suit on behalf of the government - not the victims. The result? The government gets bigger, the trial lawyers get richer, and the injured people get nothing," he said.

However, Sen. Jack Reed (D-RI), said that government litigation can play a "crucial role" in setting public policy, and without government lawsuits industries such as tobacco would not take steps to warn the public about their products. He pointed to recent tobacco company ad campaigns warning cigarette smokers about the addictive nature of smoking as well as its carcinogenic factors.

"There is no compelling reason to believe that any of these steps would have been undertaken at all," said Reed, were it not for a $500 billion dollar lawsuit brought against the tobacco industry by a number of state attorneys general.

Reed and Sen. Robert Torricelli (D-NJ) are co-sponsoring the Lead Poisoning Recovery Act (S. 1821), which would allow the federal government to recover from the manufactures of lead paint public resources spent on treating and preventing childhood lead poisoning.