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. AZBY

    McCain has lost his credibility on politics and he sold himself to the extreme right wing philosophy and gun dealers.

    August 3, 2009 03:54 pm at 3:54 pm |
  2. Eimerd

    There are probably a lot of people that had great respect for the old McCain, the maverick, maybe even gave money to his campaign against Bush, like I did.
    Now all we are left with is the big question were has this person gone?
    Will the real McCain please stand up/show up?!

    August 3, 2009 03:54 pm at 3:54 pm |
  3. One Nation under God

    This is the same man who voted against the MLK holiday. so i expect nothing less.

    August 3, 2009 03:54 pm at 3:54 pm |
  4. Roger

    McCain's comments are absolutely laughable! The text rambles on, paragraph after paragraph, as McCain struggles to justify his decision on rather weak evidence. The reference to Miguel Estrada is totally without relevance to the qualifications of Sonia Sotomayor. If there was ever a case of "One doth protest too much ...", this is it! What makes McCain's comments most laughable however, is his planned vote against a woman with a sterling record of over seventeen years on the bench while for his vice-presidential nominee he chose Sarah Palin, a person whose qualifications are skimpy at best! Fortunately, McCain's vote will be irrelevant to the confirmation of Judge Sotomayor.

    August 3, 2009 03:54 pm at 3:54 pm |
  5. keith cummings

    every day I am thankful to Americans for not voting in McCain and Palin.

    August 3, 2009 03:54 pm at 3:54 pm |
  6. bweaver

    McCain dwells on past history because he has no future. Arizona heat has fried his brains.

    August 3, 2009 03:55 pm at 3:55 pm |
  7. Clay

    The Son of Cain, which is the lireal translation of McCain, is an Idiot. What more can I say.

    August 3, 2009 03:55 pm at 3:55 pm |
  8. Dee

    I assume Mr. McCain has decided it is payback time? He can be just as childish as he accuses others of being? Please please end this partisan politics!

    August 3, 2009 03:55 pm at 3:55 pm |
  9. KJS

    I am an active member of the Latino community in Arizona. When McCain ran in 2000, I met him at a small breakfast gathering of Latino leaders. i asked him specifically about the GOP's hostility towards Latinos. He told me that he would change all that. He is a liar.

    August 3, 2009 03:55 pm at 3:55 pm |
  10. Dick

    "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."

    In other words, thinking like an old white man is a key qualification for being appointed to the court.

    August 3, 2009 03:55 pm at 3:55 pm |
  11. Kate in SW Fla

    Oh please, the NRA oppses her so McCain feels he must also. The fact is, that McCain, the same slimeball that rolled over to the far right, and allowed PALIN to be added to his ticket, sure won't stand up to the NRA. He is in a fight for his political life in Arizona, being opposed by the real right winger, who just may be able to unseat McCain in the primary. This is all he is worried about right now, thinking that after he wins the primary, IF he does, that he will be able to flim flam the hispanics by reminding them of his half hearted attempt at immigration reform. He has absolutely no intergity whatsoever. And the hispanics know it too.

    August 3, 2009 03:56 pm at 3:56 pm |
  12. Christopher

    You are all coming down way to hard on McCain, don't you think that just maby he is a little older and wiser than Obama? I think even just considering his age and experience is enough to at least consider what he is saying. Obama has hardly any political experience prior to his precedency.

    August 3, 2009 03:56 pm at 3:56 pm |
  13. Len Smith

    Honesty and competence loses in McCain's book.

    August 3, 2009 03:56 pm at 3:56 pm |
  14. Tabitha

    I'm gonna be glad in 2011 when McCain is not elected so that I DO NOT HAVE TO HEAR HIM AGAIN! And this decision to oppose Sotormayor is sure hurting his election chances which is fine by me.

    He calls himself a maverick but all he has done recently is cower to conservatives.

    August 3, 2009 03:56 pm at 3:56 pm |
  15. LoLo

    Also I bet he does not even know what went on at the confirmation hearings. He is just going by what he heard from his republican colleagues and Fox 5 news. Just pathetic.

    August 3, 2009 03:56 pm at 3:56 pm |
  16. Loay Ragheb

    I am impressed by what the senator had to say. I believe that judge Sotomayor's is on a mission to change the law to fit into her personal values rather than the application of the law. However, she does induce a state of fairness and balance to a bench that is filled with the same.
    Thanks

    Loay Ragheb
    Author "The Higher You"

    August 3, 2009 03:56 pm at 3:56 pm |
  17. Beck

    McCain is a good man and a Patriot but I did not vote for him. But can you imagine how much better our country would be run if McCain was President instead if the Great Pretender we have now.

    August 3, 2009 03:56 pm at 3:56 pm |
  18. Charlotte

    How nice for all these sad, sorry demagogues that they don't have to bring conscience or morals into their votes. McCain, knowing full well that this highly qualified jurist will be confirmed no matter what he does, is free to wallow at the feet of his wingnut base so he can later say "see?? I voted against the Latina! I voted against this horribly activist judge (despite her record leaning slightly to the conservative side of dead-center)!") I wonder if he would do this if the vote were likely to be close? Does he have ANY conscience or soul at all or did he sell them all out so he can ride on his "hero" credentials. Do any of the republicans have the cohones to vote for what's right instead of what appeases their base? Ok, ok – six or seven do.

    August 3, 2009 03:56 pm at 3:56 pm |
  19. nick

    McSame is the same. No change. This comes from the one who gave us Palin. You will NEVER and I mean NEVER be president of the United States McSame. Take that to the bank. I hope they vote him out. He is NO hero he just got caught. I would want to learn from the ones that didn't get caught not the ones that did. NO HERO McSAME.

    August 3, 2009 03:57 pm at 3:57 pm |
  20. Jon in CA

    I have a good idea.....

    How about we let the Firemen of Newhaven decide if Sotomayer is "qualified".... since she decided the fate of THEIR promotions.

    August 3, 2009 03:57 pm at 3:57 pm |
  21. SHERRY

    Did you forget how many house you have, please go to one of them and get out of politics. Arizona resident to get rid of McCain and Kyle.

    August 3, 2009 03:57 pm at 3:57 pm |
  22. Axl in Iowa

    It is this kind of common sense leadership and perspective that "should have" gotten John McCain the presidency.

    Go home sotomayor. Your a tyrant freak of democracy.

    August 3, 2009 03:57 pm at 3:57 pm |
  23. Steph

    When will they stop comparing her to every other Latino in the legal profession? Don't they know that is insulting?!?! So, the democrats didn't like your hispanic so you won't vote for ours now? Do you see how demeaning that is to both Mr. Estrada and Judge Sotomayor?

    August 3, 2009 03:57 pm at 3:57 pm |
  24. David

    McCain didn't write this. A republican voice, not an American voice, told him how to respond.

    August 3, 2009 03:58 pm at 3:58 pm |
  25. Jack in Florida

    Do we really care what John McCain thinks?? We voted against him in the Presidential election and it is time for him to retire......

    August 3, 2009 03:58 pm at 3:58 pm |
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