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. ~~ July ~~

    "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 ..............

    Princeton University and later from Yale Law School

    oooooooooooh interesting!! Poor fool! yet he is willing to bat for Palin??? ..... pobre tonto! No sabe lo hace stupido.

    August 3, 2009 03:42 pm at 3:42 pm |
  2. Jane

    Republicans have a rightwing agenda to control others morality. They are quite happy to have Activist Judges as long as these take the hard right line. We already have too many of these types on the Supreme Biased Court.

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

    The Democrats hypocrisy with Miguel Estrada and many others sums it up. It does not matter if they have the votes as it is important to vote against here due to her prior rulings. She is an activist judge.

    August 3, 2009 03:42 pm at 3:42 pm |
  4. not a Jackson or a Palin fan

    Sarah Palin wrote that for him...can't you tell ? Wink, wink...

    August 3, 2009 03:42 pm at 3:42 pm |
  5. Moderate Democrat

    McCain also voted against Veterans Benefits, because he didn't think he would have a chance to kill more of them. Atleast he's consistant!

    (He should go hunting with Cheney: McCain is used to being tortured and shot at after all).

    August 3, 2009 03:43 pm at 3:43 pm |
  6. Vegas Barbie the Paralegal for Obama

    Taking Sen. McCain's comments with a HUGE grain of salt, since said comments come from the man who chose SARAH PALIN to be his running mate and saw HER fit to be second-in-command to the POTUS. Kind of makes his opinions and resulting judgments on anyone's fitness to be anything really a moot point in my book.

    August 3, 2009 03:43 pm at 3:43 pm |
  7. Stepheny Tays

    WOW Senator McCain – Still sour grapes from the Bush administration and losing the election?????? If I could vote for the Supreme Court Justice, I would not vote for Sotomayor, but it is because I think she is prejudice against white males not because of sour grapes. Johnny boy, you had better go take a vacation in Alaska.

    August 3, 2009 03:43 pm at 3:43 pm |
  8. Mike Mullin

    McCain continues to be a sore loser. He complains about a lack of bipartisinship while undermining the president at every turn. Interesting recent revelations that McCain selected Palin because of sagging poll numbers among women. He constantly displays a lack of courage by refusing to aknowledge bad judgement in picking her as his running mate;refuses to take a stand when asked if he would support her in 2012. Does not aknowledge he ran a poor campaign. He is a man who was deeply involved in Keating scandal and escaped unscathed. Constant talk about him as a hero is missplaced. During his capture he squealed like a pig and allowed himself to be used as a propaganda tool. Numerous other true heroes shot down were tortured and stood fast. Many recent revelations about Sandford,Ensign and other republicans involved in sex scandals yet people conveniently forget he betrayed his wife also. He is a backstabber and untrustworthy.

    August 3, 2009 03:43 pm at 3:43 pm |
  9. Kelby In Houston, TX

    First of all, all of her decisions were based on legal precedent. She has never amended the law to suit her. And the difference between the GOP puppet Miguel Estrada and Sotomayor is that SHE is INFINITELY more qualified...INFINITELY!!!
    It's okay though, it's no problem. This isn't the first bad decision made by Senator McCain. (See Sarah Palin VP nomination)

    August 3, 2009 03:43 pm at 3:43 pm |
  10. Peter (CA)

    An excellent resume and an inspiring story are not enough to qualify you for the Supreme Court....

    But, less than that qualifies you to be Vice-President?

    August 3, 2009 03:43 pm at 3:43 pm |
  11. Husman

    Thank God that the American electorate were not fooled into electing Mccain as president.Less i forget, what was Mccains grade at Anapolis? With all the sterling qualities enumerated by Mccain, he still has the inability to make a sound logical conclusion that Sotomanyor should be confirmed as a supreme court judge.
    Once again thank God Mccain is not my president.

    August 3, 2009 03:44 pm at 3:44 pm |
  12. Weepy

    My thoughts EXACTLY! Everyone with a "lick of sense" knows that the REAL reason that she was nominated for the Supreme Court was to pacify Hispanics and women! Certainly not because she was the MOST qualified. Would someone please send that woman a comb, brush and shampoo!!!

    August 3, 2009 03:44 pm at 3:44 pm |
  13. Leonard

    So what!!! I really could care less what he thinks.

    YES Sen. McCain, America is watching this nomination and watching how you and your party are acting. Advice to the GOP. Please keep doing what you are doing. Your party will only be white and you wil never when another election.

    I would really like that.

    August 3, 2009 03:44 pm at 3:44 pm |
  14. Johnny DC

    Are you idiot Liberals reading what McCain wrote? Do you have no response to why Estrada was denied what was rightfully his position to gain?

    Your hypocrisy is UNBELIEVABLE, Liberals.

    Someone respond to this. One of you actually respond why it is okay for Democrats to filibuster (which means to not even allow a vote, for those so ignorant you don't know the definition) but it is not okay for a Senator to vote his conscience? Why? WHY:

    August 3, 2009 03:45 pm at 3:45 pm |
  15. Stephen

    Well it all comes to this, You can't please everyone. I support President Obama's pick Sonia Sotomayor, God Bless His choice.

    August 3, 2009 03:46 pm at 3:46 pm |
  16. D. Sangiovanni

    Mr. McCain your observations about Soto Mayor are part of the reason Latinos din't vote for you.

    August 3, 2009 03:46 pm at 3:46 pm |
  17. LacrosseMom

    CNN can save themselves quite a bit of time and just have ONE headline...........

    ALL GOPERS REJECT SOTOMAYOR!

    PS. TO GOPERS:

    Don't bother to come asking for the Latino vote! Wont get it!

    August 3, 2009 03:46 pm at 3:46 pm |
  18. no name calling

    Way to go, Mr. McCain.

    You choose Palin to run with you as Vice President with absolutely no qualifications, but you can think of many reasons whyJudge Sotomayor is not good enough to be on the Supreme Court..

    And you have the audicity to mention common sense in your disortation.

    You could have used some of that common sense last year on August 29, before releasing the Wasilla hillbillies on the rest of the county.

    August 3, 2009 03:46 pm at 3:46 pm |
  19. Steph

    I doubt she will lose any sleep over this. I am looking forward to the day she is sworn in!

    August 3, 2009 03:47 pm at 3:47 pm |
  20. Dutch/Bad Newz, VA

    I never thought I will say this, but Sen. Lindsay Graham is making the rest of you "Party First" republicans look completely partisan. At least you guys won't be around for another term in office.

    August 3, 2009 03:47 pm at 3:47 pm |
  21. Shasta

    As a democrat, I think it's shameful to suggest McCain will be losing his seat because "[e]very Latina is Arizona will turn out to make sure he does not make it back to Washington" for voting against Sotomayor. What a disgusting display of racism.

    August 3, 2009 03:47 pm at 3:47 pm |
  22. G SMITH PA

    A Republican that knows best. The Democrats are destroying this country.

    August 3, 2009 03:47 pm at 3:47 pm |
  23. Bigmama

    DO we need his VOTE? silence silence silence OH OKAY so DO WE CARE!! NOPE... She will get the votes she needs and McCain will still be sitting in one of his 13 homes trying to fiqure out were to play golf..

    August 3, 2009 03:47 pm at 3:47 pm |
  24. D. Sangiovanni

    I think Arizona's Latinos must pay back to McCain on election's day..

    August 3, 2009 03:47 pm at 3:47 pm |
  25. Beverly

    And McCain's qualifications are ... ??

    August 3, 2009 03:48 pm at 3:48 pm |
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