August 3rd, 2009
03:28 PM ET
5 years ago

McCain to vote against Sotomayor

Sen. John McCain announced Monday that he would not vote to confirm Judge Sonia Sotomayor.
Sen. John McCain announced Monday that he would not vote to confirm Judge Sonia Sotomayor.

WASHINGTON (CNN) - After days of indecision, Sen. John McCain announced Monday he will oppose the nomination of Judge Sonia Sotomayor to the Supreme Court.

The Arizona Republican said Sotomayor tried "to walk back from her long public record of judicial activism during her confirmation hearing."

The senator's views will not slow the momentum for what is expected to be easy confirmation later this week for the 55-year-old federal appeals court judge. Legal sources say a White House swearing-in ceremony for the nominee could happen as early as Friday, depending on when the Senate casts a final vote before its August recess.

McCain is the latest Republican from a border state with large Hispanic populations to oppose Sotomayor, who would be the first Latina justice. Sens. John Cornyn and Kay Bailey Hutchison of Texas, as well as McCain's fellow Arizonan Jon Kyl have all previously announced they would vote against the nominee.

Full McCain statement after the jump:

Last year's GOP presidential nominee told CNN's State of the Union" Sunday he was "still going back and forth" over whether to back President Obama's first high court pick.

"I'm really still kind of undecided because there's no doubt that this is a great American success story," McCain told host John King. "One that would be an inspiration to millions of other Americans, particularly young Hispanic or Latino women. There's no doubt there's that side of the discussion."

But in a floor speech Monday, McCain worried Sotomayor's past record and speeches revealed a judge who will try to "amend the law to fit the circumstances of the case, thereby substituting herself in the role of a legislator."

"Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government," said McCain. "Regardless of one's success in academics and in government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For this reason, and no other, I am unable to support Judge Sotomayor's nomination."

Six Republicans have announced their support of Sotomayor, who grew up in a Bronx housing project, educated in the Ivy league, and alter went on to high profile careers as a prosecutor, private attorney, and federal judge.

Text of full statement, as released by McCain's office:

"Mr. President, it is with great respect for Judge Sotomayor's qualifications that I come to the floor today to discuss her nomination to the Supreme Court.

"There is no doubt that Judge Sotomayor has the professional background and qualifications that one hopes for in a Supreme Court nominee. She is a former prosecutor, served as an attorney in private practice and spent twelve years as an appellate court judge. She is an immensely qualified candidate.

"And obviously, Judge Sotomayor's life story is inspiring and compelling. As the child of Puerto Rican parents who did not speak English upon their arrival to New York, Judge Sotomayor took it upon herself to learn English and become an outstanding student. She graduated cum laude from Princeton University and later from Yale Law School. Judge Sotomayor herself stated that she is 'an ordinary person who has been blessed with extraordinary opportunities and experiences.'

"However, an excellent resume and an inspiring life story are not enough to qualify one for a lifetime of service on the Supreme Court. Those who suggest otherwise need to be reminded of Miguel Estrada. Mr. Estrada also was a supremely qualified candidate. And he too has an incredible life story. Miguel Estrada actually immigrated to the United States from Honduras as a teenager, understanding very little English. Yet, he managed to graduate from Columbia University and Harvard Law School magna cum laude before serving his country as a prosecutor and a lawyer at the Department of Justice. Later, he found success as a lawyer in private practice. However, Miguel Estrada, in spite of his qualifications and remarkable background – in spite of the fact that millions of Latinos would have taken great pride in his confirmation – was filibustered by the Democrats seven times, most recently in 2003 because many Democrats disagreed with Mr. Estrada's judicial philosophy. This was the first filibuster ever to be successfully used against a court of appeals nominee.


"I supported Mr. Estrada's nomination to the D.C. Circuit Court of Appeals, not because of his inspiring life story or impeccable qualifications, but because his judicial philosophy was one of restraint. He was explicit in his writings and responses to the Senate Judiciary Committee that he would not seek to legislate from the bench.

"In 1987, I had my first opportunity to provide 'advice and consent' on a Supreme Court nominee. At that time, I stated that the qualifications I believed were essential for evaluating a nominee for the bench included 'integrity, character, legal competence and ability, experience, and philosophy and judicial temperament.'

"When I spoke of 'philosophy and judicial temperament' is it specifically how one seeks to interpret the law while serving on the bench. I believe that a judge should seek to uphold all acts of Congress and state legislatures unless they clearly violate a specific section of the Constitution and refrain from interpreting the law in a manner that creates law. While I believe Judge Sotomayor has many of these qualifications I outlined in 1987, I do not believe that she shares my belief in judicial restraint.

"When the Senate was considering Judge Sotomayor's nomination to the Second Circuit in 1998, I reviewed her decisions and her academic writings. Her writings demonstrated that she does not subscribe to the philosophy that federal judges should respect the limited nature of the judicial power under our Constitution. Judges who stray beyond their constitutional role believe that judges somehow have a greater insight into the meaning of the broad principles of our Constitution than representatives who are elected by the people. These activist judges assume that the judiciary is a super-legislature of moral philosophers.

"I know of no more profoundly anti-democratic attitude than that expressed by those who want judges to discover and enforce the ever-changing boundaries of a so-called 'living Constitution.' It demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And regardless of one's success in academics and government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench.

"Though she attempted to walk back from her long public record of judicial activism during her confirmation hearings, Judge Sotomayor cannot change her record. In a 1996 article in the Suffolk University Law Review, she stated that 'a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.' Mr. President, it is exactly this view that I disagree with.

"As a district court judge, her decisions too often strayed beyond settled legal norms. Several times, this resulted in her decisions being overturned by the Second Circuit. She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a state law claim. She was reversed for trying to impose a settlement in a dispute between businesses. And she was reversed for unnecessarily limiting the intellectual property rights of freelance authors. These are but a few examples that led me to vote against her nomination to the Second Circuit in 1992 because of her troubling record of being an activist judge who strayed beyond the rule of law.

"For this reason, I closely followed her confirmation hearing last month. During the hearing, she clearly stated that 'as a judge, I don't make law.' While I applaud this statement, it does not reflect her record as an appellate court judge. As an appellate court judge, Judge Sotomayor has been overturned by the Supreme Court six times. In the several of the reversals of Judge Sotomayor's Second Circuit opinions, the Supreme Court strongly criticized her decision and reasoning. In a seventh case, the Supreme Court vacated the ruling noting that in her written opinion for the majority of Second Circuit, Judge Sotomayor had ignored two prior Supreme Court decisions.

"While I do not believe that reversal by the Supreme Court is a disqualifying factor for being considered for the federal bench, I do believe that such cases must be studied in reviewing a nominee's record.

"Most recently, in 2008, the Supreme Court noted in an opinion overturning Judge Sotomayor that her decision 'flies in the face of the statutory language' and chided the Second Circuit for extending a remedy that the Court had 'consistently and repeatedly recognized for three decades forecloses such an extension here.' Unfortunately, it appears from this case, Malesko v. Correctional Services Corp., that Judge Sotomayor does not seek 'fidelity to the law' as she pledged at her confirmation hearing. As legislators, we enact laws. The courts must apply the law faithfully. The job of a judge is not to make law or ignore the law.

"Further, in Lopez Torres v. N.Y. State Board of Elections, the Supreme Court overturned Judge Sotomayor's decision that a state law allowing for the political parties to nominate state judges through a judicial district convention was unconstitutional because it did not give people, in her view, a 'fair shot.' In overturning her decision, the Supreme Court took aim at her views on providing a 'fair shot,' to all interested persons stating, 'it is hardly a manageable constitutional question for judges – especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a 'fair shot' at party nomination.'

"In her most recent and well-known reversal by the Supreme Court, the Court unanimously rejected Judge Sotomayor's reasoning and held that white firefighters who had passed a race neutral exam were eligible for promotion. Ricci v. DeStefano raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures. Again, this case proves that Judge Sotomayor does not faithfully apply the law we legislators enact.

"Again and again, Judge Sotomayor seeks to amend the law to fit the circumstances of the case, thereby substituting herself in the role of a legislator. Our Constitution is very clear in its delineation and disbursement of power. It solely tasks the Congress with creating law. It also clearly defines the appropriate role of the courts to 'extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties.' To protect the equal, but separate roles of all three branches of government, I cannot support activist judges that seek to legislate from the bench. I have not supported such nominees in the past, and I cannot support such a nominee to the highest court in the land.

"When the people of Arizona sent me to Washington, I took an oath. I swore to uphold the Constitution. For millions of Americans, it is clear what the Constitution means. The Constitution protects an individual's right to keep and bear arms to protect himself, his home, and his family. The Constitution protects our right to protest our government, speak freely and practice our religious beliefs.

"The American people will be watching this week when the Senate votes on Judge Sotomayor's nomination. She is a judge who has foresworn judicial activism in her confirmation hearings, but who has a long record of it prior to 2009. And should she engage in activist decisions that overturn the considered constitutional judgments of millions of Americans, if she uses her lifetime appointment on the bench as a perch to remake law in her own image of justice, I expect that Americans will hold us Senators accountable.

"Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And, as I stated earlier, regardless of one's success in academics and in government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For this reason, and no other, I am unable to support Judge Sotomayor's nomination."


Filed under: John McCcain • Sonia Sotomayor
soundoff (301 Responses)
  1. Post always rejected by CNN

    Oh deary me, another republican scared and made to march in lock step with the dark side of the republicans ruled by rush.

    August 3, 2009 03:31 pm at 3:31 pm |
  2. xavier

    Dont get to comfortable in Washington McCain, next time you are up for re-election we will vote you out!

    August 3, 2009 03:31 pm at 3:31 pm |
  3. Dutch/Bad Newz, VA

    McCain is a senator where majority of the population is hispanic. The man has fell off of his rocker. He'll be known as the "former" Arizona senator.

    August 3, 2009 03:31 pm at 3:31 pm |
  4. tesap;savannah, ga

    Soooo, this vote was payback?

    August 3, 2009 03:31 pm at 3:31 pm |
  5. John E Lexington KY

    How will Supreme Associate Justice Sotomayor survive?

    If I follow the argument, Estrada was rightfully denied his nomination since McCain is voting to do the same for Sotomayor on the same grounds. He is in effect approving the blocking of Estrada

    Given his elevation of Sarah Palin, we can assume that his rejection of Sotomayor indicates a distinguished future for her.

    August 3, 2009 03:33 pm at 3:33 pm |
  6. Emma

    McCain is such a brainless wonder. Thank GOD he isn't president.

    August 3, 2009 03:35 pm at 3:35 pm |
  7. George

    Doesn't surprise me. He brought Palin into the spotlight. Quite a difference in the 2 women. Losers don't vote for winners!!!!!

    August 3, 2009 03:35 pm at 3:35 pm |
  8. Hotdog

    If this is really his reason for not voting for her then it really illustrates why nothing gets done on Capitol Hill. A good majority of these elected officials can not be taken serious. McCain is only fooling no one but his self.

    August 3, 2009 03:35 pm at 3:35 pm |
  9. Joan

    And does McCain recognize the "common sense limitations" on anything !!!

    Was having Palin as your front runner "common sense" – if the answer is "yes" then that answers a LOT of questions.

    Could McCain be trying to put a "spanner in the works !!" It is easy to say words but much harder to stick by what you have said. I think that this man speaks with a "forked" tongue.

    August 3, 2009 03:36 pm at 3:36 pm |
  10. indy 08

    McCain, i hope you lose in Arizona, hispanics will not support you for good reason. You caved to the NRA and the rightwing. Please save us from the sanctimonius attacks on the president for not being bipartisan. You had the most experienced SCOTUS nominee in 100 years to be nomimated and you mention Estrada. Simply amazing

    August 3, 2009 03:37 pm at 3:37 pm |
  11. Kim

    Of course, his real reason is because he refuses to back anything suggested by the man who embarrased him by defeating him by such a wide margin. But that is the Republican way - playing like kids in a sandbox - not caring if anything ever gets done but simply making sure the other kids in the sandbox never get their way!

    August 3, 2009 03:37 pm at 3:37 pm |
  12. annie s

    Weren't the Supremes being activist judges when they ignored States rights and appointed a President. What a hypocrite you are, John McCain.

    August 3, 2009 03:37 pm at 3:37 pm |
  13. Keisha

    McCain is old and senile

    August 3, 2009 03:37 pm at 3:37 pm |
  14. Julie

    Wow! What a shocker!

    August 3, 2009 03:38 pm at 3:38 pm |
  15. Jerry

    We didn't need another reason to vote this loser out of AZ, thanks for the present. McCain is siding with the party again, whatever happened to that Maverick personna?

    August 3, 2009 03:39 pm at 3:39 pm |
  16. barbara miller

    Didn't I just see you lashing out yesterday about Obama not reaching out? Hmmmm ~ as Gibbs said this a.m. "in the next few days you'll see an example of what lack of bipartisanship looks like". You're not kidding. I hope you lose your senate seat next election Senator!

    August 3, 2009 03:39 pm at 3:39 pm |
  17. Lockwood

    You protest too much, Senator. The real issue is that you are exacting revenge for Estrada. Two wrongs do not make a right.

    August 3, 2009 03:39 pm at 3:39 pm |
  18. Deborah Black

    Big surprise, John McCain is so frightened by the conservative right he has lost his mind, just like in the election.
    By the way, I was highly offended when John King, during his ever increasing interviews with John McCain; said that the American People trusted John McCain, in practically every situation, including the economy and so on. WHAT? D0 YOU REMEMBER HE LOST the election; and disgraced himslef by his pick for VP. John King has clearly lost touch with what The American People think about anything. He and Lou Dobbs should just go ahead and switch to FOX. The only people they talk to, or have on their shows lately, are anti Obama, anti progress, birthers.

    August 3, 2009 03:40 pm at 3:40 pm |
  19. Anon

    I am from AZ and I wish that bonehead would retire so we can elect someone with some brains. What a MORON!!!!

    August 3, 2009 03:40 pm at 3:40 pm |
  20. Laverne

    John McCain just lost his senate seat. Every Latina is Arizona will turn out to make sure he does not make it back to Washington. I hope his opponent blows his old butt out of the water. I think he must be ready to retire and if he is not ready, he better get ready!

    August 3, 2009 03:41 pm at 3:41 pm |
  21. Barbara Gentry

    Bravo, Senator McCain. Well said. I hope enough of your colleagues agree.

    August 3, 2009 03:41 pm at 3:41 pm |
  22. Joe in CA

    blah blah blah. want a sore loser. or shoudl i just say loser. the party of NO continues.

    August 3, 2009 03:41 pm at 3:41 pm |
  23. Michael M, Phoenix AZ

    McCain probably would have voted against Thurgood Marshall also.

    August 3, 2009 03:41 pm at 3:41 pm |
  24. AUSTIN,TX

    very smart Mr McCain...good luck to holding your seat next year.

    August 3, 2009 03:42 pm at 3:42 pm |
  25. Charles

    Cry me a river McCain. You're rebuttal just makes your disapproval sound more like a personal vendetta to ensure Sotomayer is not confirmed because your party's last attempt to get a conservative Justice into the Supreme Cour failed, 7 times. The very success of the United States is the continued reevaluation and evolution of our laws and the method in which we attempt to uphold the Constitution. Without change, our lives cannot become better. You're suggesting we allow our laws to sit stagnant and some day cripple the United States' ability to contiue to grow and accomodate those who seek the freedom the flexibility of our laws allow.

    August 3, 2009 03:42 pm at 3:42 pm |
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