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. steve poppitz

    somebody has got to throw a wet towel on this old horse
    maybe
    just maybe that would keep him quiet

    August 3, 2009 04:27 pm at 4:27 pm |
  2. Concerned American Citizen

    God will ultimately hold McCain accountable for his partisan and prejudicial decisions

    August 3, 2009 04:29 pm at 4:29 pm |
  3. Patty

    How much does the threat from the NRA have to do with McCain's not backing Sotomayor?

    August 3, 2009 04:29 pm at 4:29 pm |
  4. SRG

    Gee what a surprise, McCain is voting against Sotomayor. The Republicans want everything and anything that the Obama administration puts forward to fail. I guess they still believe that they did a great job for the previous 8 years. Maybe they should start coming up with better ideas before they slam everything, including Sotomayor.

    August 3, 2009 04:30 pm at 4:30 pm |
  5. Deb

    I am so sick and tired of always seeing and hearing him. Enough you lost the election get over it. In a district such as Arizona which you represent, it does not bode well that you would vote against the
    "Wise Latina Woman"!

    August 3, 2009 04:30 pm at 4:30 pm |
  6. Arlene, Illinois

    Is this the same John McCain who lost the last election now
    telling us he won't vote for Sotomayor, my my I really didn't know
    how senile this man is getting, but CNN must love him as he
    is always on the channel. The old saying what goes around
    comes around!

    August 3, 2009 04:30 pm at 4:30 pm |
  7. Donna from Colorado Springs

    What a pompous arrogant little man he is!

    August 3, 2009 04:30 pm at 4:30 pm |
  8. Nat

    Well said, Senator McCain. Don't give up! You are the best role model for Lindsay Graham.

    August 3, 2009 04:30 pm at 4:30 pm |
  9. Charlie

    I agree with McCain – Soto has no business sitting in the Federal Bench. Although she has a great story and resume, I feel that anyone who has historically shown negligence in their decision making process and has been over-ruled so many times obviously has faulty logic.

    More importantly, her record shows that judicial power should not be limited as prescribed in the Constitution:
    "...she does not subscribe to the philosophy that federal judges should respect the limited nature of the judicial power under our Constitution. [She believes] that somehow judges have a greater insight into the meaning of the broad principles of our Constitution than representatives who are elected by the people. "

    I do not want anyone who feels they are "above" the Constitution and/or the "rule of law" having any position of significant stature. Let her stay at the State level where she is less likely to impact as many people.

    August 3, 2009 04:30 pm at 4:30 pm |
  10. richard

    Mcain is still alive
    he's keeping the racism alive for the whacky right

    August 3, 2009 04:31 pm at 4:31 pm |
  11. Gladys

    I am a Democrat and agree whole heartedly with Mr. McCain. Too many of the comments were made because of emotions rather than looking at the facts. The facts are that Ms Sotomayor does rule to change law and legislate new law under her interpretations. I applaud Mr. McCain for having the integrity and courage to stand against this nomination. He didn't fare too well during elections, but he is right on in this one. Congratulations Mr. Mc Cain. Thank you for standing up for the American people

    August 3, 2009 04:31 pm at 4:31 pm |
  12. Cynthia

    I hope the Hispanics stand strong against this old fart in 2010!

    August 3, 2009 04:31 pm at 4:31 pm |
  13. schmeckel

    Lady Justice just got a new set of binoculars

    August 3, 2009 04:32 pm at 4:32 pm |
  14. Mike, FL

    It is just a way of sticking it to the Latina's who voted against him during the last election!

    August 3, 2009 04:32 pm at 4:32 pm |
  15. GOP = 21st century dodo

    Guess AZ won't be red too much longer.

    August 3, 2009 04:33 pm at 4:33 pm |
  16. Fool me once shame on u, fool me twice err...

    Sen. McCain appears to be drowning in bitterness from losing to the President in the November '08 smack down! He will oppose everything Obama. The good Senator needs time off to recuperate from the landslide loss.

    August 3, 2009 04:33 pm at 4:33 pm |
  17. Al, KS

    McCain has to get nominated first. This is an obvious attempt to placate the base to win the primary. The general should be interesting. Hopefully AZ will let him retire to one of his (what was it?) 13 homes.

    August 3, 2009 04:33 pm at 4:33 pm |
  18. 0 for 4

    Dude, you lost. Get past it.

    August 3, 2009 04:34 pm at 4:34 pm |
  19. Doug, New Jersey

    "This is what the President meant by changing the face of Washington. Getting all of you old, no new idea, divide and conquer politicians out of here"

    Your head is so far down in the sand that you must be a hermit crab, Barak Obama IS THE DIVIDE AND CONQUER PRESIDENT. A young Robert Byrd would have sheded tears of joy all over his hood if he knew that a guy like Obama would become president. If you want to really know who Obama is you might want to read the current manual of the Obama presidency, the author is Saul Alinksy.

    August 3, 2009 04:35 pm at 4:35 pm |
  20. Andrew O.

    I love all of the libs criticism. One trait of a liberal: no common sense. This trait becomes vivid when someone presents a clear claim and argument with relevant evidence supporting the claim. The common lib reply has been, "of course he won't vote for Obama's nominee, Obama beat McCain in the election". One has to appreciate the ignorant rationality of the liberals; a big group of people that collectively decides to be misinformed and naive. The fact is, through looking at her legal history it is easy to conclude that Sotomayor does not believe that the Constitution of the greatest country in the world has any merit in law. On those grounds she should not be confirmed.

    August 3, 2009 04:35 pm at 4:35 pm |
  21. tisgoogle

    Get lost McCain! So tired of these wingnuts party of no!

    August 3, 2009 04:35 pm at 4:35 pm |
  22. Joseph-Ohio

    Yet another reason why McCain would not have made a very good President.

    August 3, 2009 04:35 pm at 4:35 pm |
  23. BoSox

    The GOP don't like minorities.....just look at their action since the election of President Obama. Party on "NO" ideas.

    August 3, 2009 04:35 pm at 4:35 pm |
  24. Denise

    Did the NRA tell him how to vote on this one?

    If he gets re-elected after taking advise from Ted Nugget on Supreme Court appointment.

    August 3, 2009 04:36 pm at 4:36 pm |
  25. Drooling Liberal

    Um, doesn't McCain know that MINORITIES aren't smart enough to understand that it is ok to disagree with someone who is a minority?

    Doesn't he realize that blacks will vote for blacks and latinos will vote for latinos no matter what they stand for? Not that there racists or anythingk, no no no no. Not at all..........

    August 3, 2009 04:36 pm at 4:36 pm |
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