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. Independent

    I guess the NRA got to him....what a shame.....

    Don't coount on Hispanic votes when you come up for election....

    The Party of NO still at work....SHAME ON THEM....How much lower can they go?????????

    August 3, 2009 04:50 pm at 4:50 pm |
  2. Mike Hodge

    Hope the good people of Arizona take note of this obvious racist.

    August 3, 2009 04:50 pm at 4:50 pm |
  3. pa. independent

    McCain ran for POTUS on his life story, and he felt Palin was qualified to be president too. I honestly think he has dementia setting in.

    AZ vote this guy out, please!

    August 3, 2009 04:51 pm at 4:51 pm |
  4. Ruty

    Are any of you surprised? This man votes against any thing that benefits anyone else. He is selfish and self centered and his records show it.

    August 3, 2009 04:51 pm at 4:51 pm |
  5. Tachea

    Why doesn't that surprise me, Mc Cain you lost stop being a sore loser before you mess up your re-election for being a senator.

    August 3, 2009 04:52 pm at 4:52 pm |
  6. C. L. Clark

    It becomes increasingly apparent which members of Congress are owned by the insurance industry. Who represents the people?

    August 3, 2009 04:52 pm at 4:52 pm |
  7. Libertarian

    WAIT wait wait wait wait.....Johnny. You claimed that Palin was fully qualified to run this country with absolutely NO EXPERIENCE. However, this woman has spent her entire career on the bench and you shoot her down??? Come on Johnny.......

    August 3, 2009 04:53 pm at 4:53 pm |
  8. Johns

    wow!!!
    An audacity to hit the Hispanics right on their heads.

    What's with all the Hispanics in Arizona?

    Obstructionism is all I can see.

    August 3, 2009 04:53 pm at 4:53 pm |
  9. TBrittain

    I don't know why people are surprised about John McCain. He is a sock-puppet and always has been. Furthermore, he claims he is for 'country first" yeah right!

    John McCain is as dopey as that candidate for Vice President that he picked Sarah "no brains" Palin.

    All of the hispanics in Arizona should position themselves to vote McCain out of office. He is still and has been a raving maniac. He isn't even an American citizen. He was born in Panama. He is not a natural born citizen of America.

    McCain has some nerve. He claimed during the campaign that he was open and running to be president for all of the people. He's a liar. All of the people that are giving campaign contributions; such as the healthcare industry.

    What a chump, still sporadic and unpredictable.,

    August 3, 2009 04:54 pm at 4:54 pm |
  10. Matt

    Wow. And these republicans wonder why they have been doing so poorly with the minority voters.

    August 3, 2009 04:54 pm at 4:54 pm |
  11. Hugo

    Thank God for Sotomayor, how else in this horrible country will the poor uneducated government kept minorities get a fair break and retain their right to a Free handout? How else will this Government continue to override our rights and freedoms but to have a leftist liberal Affirmative Action Jackson on the bench.

    I vote for a celebrity death match challenge, A Wise Old Latina versus An Alaskan Moose Hunting hottie! Why do all the liberal women look like Rosie O'Donnell?

    August 3, 2009 04:55 pm at 4:55 pm |
  12. chuck

    Republicans insist on shooting themselves in the foot to appease the National Rifle Association and carrying the heavy banner of the second amendment back home to wrap themselves in because that is the only cover that they will have when confronted by Republican constituents back home while on August break. Hispanics will not forget the votes of Kyle, McCain, Hutchinson, Sessions and Cornyn. While Democrats will be placing the fastest voting bloc in America squarely in their corner, the Republicans will be left with the shrinking white voters who are stuck on God and guns and screw everybody else and everything else.

    August 3, 2009 04:55 pm at 4:55 pm |
  13. TBrittain

    Also, don't forget Senator John McCain was the hold out on making Dr. Martin Luther Kings birthday a national holiday. What's that tell ya!

    August 3, 2009 04:56 pm at 4:56 pm |
  14. Loraine

    Amen...will these old Republicans and their ancient views never die.

    Tell you one thing..if they want to raise my taxes 1% year to get reformed health care in government....they get my voite...
    I can't wait to see the current health insurance companies go down the toilet....

    August 3, 2009 04:56 pm at 4:56 pm |
  15. Richie

    Who cares what McLoser says?

    August 3, 2009 04:57 pm at 4:57 pm |
  16. Father

    Sorry you can't shoot down a hispanic then claim credit for one from the 1960s. no one heard of and no one cares. Its your own fault you can't do spit in your party because they are so racist. You vote for her and your politically toast. We know that. So even if you aren't racist, you play ball w/ racists. So you, my friend, are even worse. Good luck w/ those Hispanics in AZ.

    August 3, 2009 04:57 pm at 4:57 pm |
  17. tim

    Before McCain bought on the Bush advisers and Palin I thought he might be the answer to help end some of the political fighting that makes no sense here in real America. Boy was I stupid

    August 3, 2009 04:57 pm at 4:57 pm |
  18. Maria Perez-Smith

    Mr. Mccain is the afraid of the WISE LATINA, well, here to stay , and we, WISE LATINAS are not going any where.
    WISE LATINAS RULE. WISE LATINAS WILL RULE THIS COUNTRY AND ALL THE REPUBLICANS.

    August 3, 2009 04:57 pm at 4:57 pm |
  19. Babs

    What a shocking surprise!! I wonder if he'll settle for a write in instead....say, Sarah Palin.

    August 3, 2009 04:57 pm at 4:57 pm |
  20. Richard Mariano

    It is no secret that John McCain will vote agains Sotomayor's nomination. He is a racist before and he still is. This is why he never won the presidency. America has changed and these white collar, grey headed men must change to.

    August 3, 2009 04:58 pm at 4:58 pm |
  21. wow

    what a maverick!

    August 3, 2009 04:58 pm at 4:58 pm |
  22. Charlie

    Suzan – The fact that you think the GOP are racist obviously implies your lack of good judgement, understanding and education. Have you heard of Michael Steele – current Chair of the Republican National Committee? Yes, he's Republican and yes, he's a minority. Geez, what a totally racist party! Give me a break lady!

    August 3, 2009 04:58 pm at 4:58 pm |
  23. Nancy in Illinois

    This really comes off sounding like sour grapes. He's only voting no because she's President Obama's pick. Good luck getting re-elected in your heavily Hispanic state, Grampy.

    August 3, 2009 04:59 pm at 4:59 pm |
  24. cspurgeon

    I hope the women and the Hispanics in Arizona vote him out.He is an absolute worm.

    August 3, 2009 05:00 pm at 5:00 pm |
  25. Big Al

    Agree with him 100%. She consistently dodged the questions with non answers. Unfortunately, there is no recall on this appointment. Just another activist judge to ignore the Constitution and the will of the people.

    August 3, 2009 05:00 pm at 5:00 pm |
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