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. RR in AZ

    I hope the State of Arizona makes him pay at the ballot box. There are a number of Hispanics in this state....

    August 3, 2009 03:48 pm at 3:48 pm |
  2. Robert in Georgia

    When is this bozo up for re-election in Arizona?

    August 3, 2009 03:48 pm at 3:48 pm |
  3. GI Joe

    Sure has the verbal green apple trots, doesn't he? Blowhard.

    Wonder if he spoke that much when he was giving out secrets in NAM?

    Term Limits !!!!!!!! No Senator more than 3 or 4 terms. Term Limits !!!!!

    August 3, 2009 03:49 pm at 3:49 pm |
  4. Cindy

    I don't agree with McCain but for the first time in a very long time I respect a member of the Republican party. Finally, someone has taken the time to articulate a good reason (in their mind) for voting against an Obama request. Good job Republicans! Maybe this country won't have the need to change it's name to the "United States of Obama" after all.

    August 3, 2009 03:49 pm at 3:49 pm |
  5. gg

    You ignore Justices Roberts and Alito and their record on the court. They are doing all they can to push the law in the direction they want. How hypocritical to accuse Sotomayer of creating law when the express objectives of certain justices is to undo past supreme court rulings. This is shameful.

    August 3, 2009 03:49 pm at 3:49 pm |
  6. chris

    its all about race isn't it libs? her record DOES NOT make her a good nominee...period. but vote against her...and you're a racist. you hate mongering liberal make me want to hurl.

    August 3, 2009 03:49 pm at 3:49 pm |
  7. stormerF

    McCain is not the only one who should vote against her,She was completely turned around in her hearings and said just the opposite of what she had been preaching for years. In other words she is lying to get the JOB.

    August 3, 2009 03:50 pm at 3:50 pm |
  8. victoria oehlers

    Funny Sen. McCain should be concerned about qualifications! Who did he pick as his running mate for vice-president!!!

    August 3, 2009 03:50 pm at 3:50 pm |
  9. Jeff W.

    McCain continues to be a bitter, obstructionistic pill. He won't vote for Sotomayor yet he's unapologetic about unleaching the vapid Sarah Palin to the world. It still amazes me that McCain's first big decision was his downfall. How could anyone ever take this guy's opinion seriously ever again? What an angry, out of touch, little man.

    August 3, 2009 03:50 pm at 3:50 pm |
  10. Tom in Wheaton, Illinois

    Good Bye, John. And good riddance.

    August 3, 2009 03:50 pm at 3:50 pm |
  11. pam Eugene OR

    Shocking! The party of No says "NO". I am sure all the members of the party of NO will do the same. It is good that they are not needed to assure this outstanding judge is rightfully appointed to the Supreme Court.

    August 3, 2009 03:51 pm at 3:51 pm |
  12. Melissa

    Of course he is. Because the Republicans can't be bothered to do anything that might actually help this country, they just want to go to war. Again. I am so glad this man is not President.

    August 3, 2009 03:51 pm at 3:51 pm |
  13. Ted Tartaglia

    McCain is a Republican, right? Would you expect him to support someone nominated by the man who beat him?

    The only thing members of the Party of No do well is to say NO!

    Enough with these losers; ignore them!

    August 3, 2009 03:51 pm at 3:51 pm |
  14. Mark in Atlanta

    I give McCain credit for at least citing a few cases which concern him. The fact is that Sotomayor has been a very mainstream jurist who has never shown any inclination to favor a person or group over established law because of a personal bias. She will be, and should be, confirmed.

    August 3, 2009 03:51 pm at 3:51 pm |
  15. motruth

    Wow. So many dems on here getting all worked up over McCain doing the exact same thing Senator Barrack Obama did on Bush nominees. What hypocrisy.

    August 3, 2009 03:51 pm at 3:51 pm |
  16. Dutch/Bad Newz, VA

    Republicans who'll need a job 11/5/209:

    Sen. McCain
    Sen. Boehner
    Rep. Cantor
    Sen. McConnell
    Sen. Sessions
    Sen. Ensign

    The list goes on, but I can't name the entire Party of NO.

    August 3, 2009 03:51 pm at 3:51 pm |
  17. Chip in Cheyenne WY

    McCain is right. Judge Sotomayor is too emotional and biased. She did not answer many questions directly. America does not need her.

    August 3, 2009 03:52 pm at 3:52 pm |
  18. Retired US Army

    I do not recall Mr. Estrada having 17 years on the federal bench to demonstrate his rulings in case law. Nor do I recall Mr. Estrada being called a part of the main stream in his judical views.

    Face it, McCain's views are those of the puppet masters who have ordered Republicans to vote against Sotomayor or lose NRA funding and the backing of what ever is left of the RNC. Their votes are really against Obama's first court nomination, a hispanic and a woman. She has been called by members of both parties the most qualified canidate to be nominated in years. Shame on you John.

    August 3, 2009 03:52 pm at 3:52 pm |
  19. simp

    After picking that idiot palin as a running mate, his opinions are not even considered by anybody with half of brain. mccain needs to fade to the background, you had your 5 seconds, hit the road jack!!!

    August 3, 2009 03:52 pm at 3:52 pm |
  20. Jerry in NC

    Mr. McCain, how dare you get up on that high horse, and judge the intentions and values of such an esteemed jurist! You, the man who ran such a despicable campaign for the presidency....you the man who showed your "high moral values" when it came to marriage....what nerve you politicians have! Are we the american people to believe that every judge who now sits on the Supreme Court, has never allowed their feelings, morals, and/or values enter into any decision that they have rendered??? If that is true, then those are NOT human beings. For once, grow a pair and stand up and tell the REAL reason you oppose this nomination....you must keep in line with the rest of your republican constituents! McCain, you're a joke that is no longer funny.

    August 3, 2009 03:52 pm at 3:52 pm |
  21. Rob Johnson

    Ah, the old "two wrongs make a right" argument. A timeless classic...

    Actually, it is one of the GOP's standard excuses/reasons for anything. Here is a handy form letter so you can customize for your pleasure...

    "We may have done INSERT STUPID ACTION HERE, but the terrorists/Democrats/Communists have done far worse, so why do you hate America?"

    Repeat as necessary.

    August 3, 2009 03:52 pm at 3:52 pm |
  22. nbascribe

    The Republicans don't get it.

    They voted for Sotomayor in 2000 for the Court of Appeals so now they will not "promote" her because of Miguel Estrada?

    Are they serious?

    Correct me if I'm wrong but wasn't the Republicans in control of the Senate in 2003?

    August 3, 2009 03:53 pm at 3:53 pm |
  23. Kathie in AZ

    I agree, let's encourage everyone here in AZ. to vote him out. He is a bitter old man with old ideas

    August 3, 2009 03:53 pm at 3:53 pm |
  24. Dutch/Bad Newz, VA

    I meant 11/5/2010

    August 3, 2009 03:53 pm at 3:53 pm |
  25. Loup Garou 782

    THANK YOU Senator McCain, you have somewhat restored my faith in you with this decision.

    August 3, 2009 03:54 pm at 3:54 pm |
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