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. frank

    McCain is insane. The republicans twist information to make their point. Until they are honest, they will never be the majority. This dishonesty is deep rooted so I think it will be a long time before they become the majority.

    August 3, 2009 04:03 pm at 4:03 pm |
  2. Marlene

    So, Sen. McCain, the one senator that is always harping about bi-partisanship, is not going to vote for Judge Sotomayor, for revenge!! How petty. I'm quickly losing all the respect I once had for the senator, because of his actions these past 6 months.

    August 3, 2009 04:04 pm at 4:04 pm |
  3. AJ

    McCain is a dried up, senile old fool who really cannot be taken seriously. This guy thought Sarah Palin was qualified to become President in the very likely event of his death. McCain is really a joke within his own party these days, got trounced badly in the election and should really be hiding under a rock in humiliation, not trying to take someone else down so he can appear powerful.

    August 3, 2009 04:04 pm at 4:04 pm |
  4. Larry

    Who cares how McCain votes. Ms. Sotomayor will be approved anyway.

    Bunch of stupid Republicans. We don't care.

    McCain is just another old Republican with OldTimers disease.

    August 3, 2009 04:04 pm at 4:04 pm |
  5. McPalin the Plumber 2012

    Johnnie boy still doesnt have a clue... so sad...

    This poor excuse for an executive letter to the president is flat out ridiculous from beginning to end... Please go back to school mr. mccain before its too late...

    August 3, 2009 04:04 pm at 4:04 pm |
  6. yuri

    What a predictable performance! He was and is a true war hero. But his modern day actions have proven not so prudent. McCain is still far better than the extreme right wing loonies and neocons.

    August 3, 2009 04:04 pm at 4:04 pm |
  7. Clint Lynnwood Wa.

    John, John, John, go away.

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

    Looks like somebody is trying to please Rush Limbaugh. Poor McCain Hispanics are going to show you how much voice they have in AZ. Like or not its time for you to retire before u will voted out.

    August 3, 2009 04:04 pm at 4:04 pm |
  9. pat o'brien

    Has he looked at the population break down in Arizona lately? She is more than adequately qualified for the job and so a "no" vote for her, means a "no" vote for you John boy.............................!!! Retire and save yourself the embarrasment of losing.

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

    So all you Obamanites think this is just getting even? Mindless twits. This lady is pro minority. Don't we have enough pro minority crap already? BET, Black Miss America, Latino this and Latino that. All you of you are going to regret your support of this communist and his slimy appointees.
    Here's the magic for you. Since ethics and morals have no value anymore cheating on taxes should be OK. You'd better hope not too many cheat or the free cheese could stop.

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

    So Old John toes the party line, so much for that maverick nonsense.

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

    She's going to be seated regardless of how McCain votes, it's kind of funny that he'd even bother making a fuss about it–a long-winded fuss at that. To be honest, he can vote however he wants, it's his choice after having been elected–presumably by the impressive retiree population of AZ, and that vote probably accurately represents them.

    But, at present people see McCain and think "McCain=Republican. Hmm." Of course, the senator's career has, objectively, seemed like a boxer just throwing fight after fight intentionally for the past 2 or so years. Bring down the whole party with you, eh? I like it, sort of a latent justice for what happened in the primary cycle a few years back.

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

    This is the Panamanian who unleashed Pailin to the world and voted against the Martin Luther King Holiday???

    August 3, 2009 04:05 pm at 4:05 pm |
  14. nom deplume, esq.

    One party rule Dutch?

    Some other countries tried that. Didn't get them far.

    Just remember to round up all the guns first.

    August 3, 2009 04:05 pm at 4:05 pm |
  15. the southern progressive

    this tat for tat crap needs to be left out of our government.. by all sides, or else, we need to figure out a new way to run our country..

    senator mccain, it is time to retire. get out of washington, please.

    August 3, 2009 04:05 pm at 4:05 pm |
  16. Ken

    McCain: what bag full of foul wind. Just like the other neo-nitwit hypocrits, he doesn't mind rightwing activism on the court and actually voted for it. Judicial restraint? You've got to be kidding me. Estrada was joke in those terms. And his other distortions and purposeful mis-leadings of Justice Stomayor's record is plainly un-presidential. I'm so glad he continues to toe the rightwing line, even after the election, so we can all be reminded why we celebrate daily his loss in the election.

    August 3, 2009 04:05 pm at 4:05 pm |
  17. Peter

    Does anyone really care what the party of No is doing? Please give us abreak you had eight years of pluging the economy! talk about people with no shame! The GOP!! pathetic!

    August 3, 2009 04:06 pm at 4:06 pm |
  18. Hugh, Miami

    The political map is going to be solid blue by the time the GOP is done screwing up their party. Voting against a Supreme Court nominee when the majority of GOP supported her shows political imorality and corrupt values not decisiveness. Sad.

    August 3, 2009 04:06 pm at 4:06 pm |
  19. Truth-Bomb Thrower

    Just when I had almost totally written ol' John off, he goes and does something sensible and admirable.

    Keep it up, John. You're starting to turn into a REAL republican again.

    August 3, 2009 04:06 pm at 4:06 pm |
  20. B

    McCain is a out of touch hasbeen and should retire. He contributes -NOTHING- to a positive national dialog along with other old men.

    TERM LIMITS people, that is the answer to rid ourselves of these fossils.
    There should be a eight year maximum term for these people !
    We need new, fresh, creative thinking, and we all are being held back by obsolete, out of touch people.

    August 3, 2009 04:06 pm at 4:06 pm |
  21. bozo the obama

    i disagree with McCain about Sotomayer. She is a qualified lawyer for the racist group La Raza, that alone is good enough for any liberal.

    August 3, 2009 04:06 pm at 4:06 pm |
  22. Meh

    Tit for tat? Is that really the way to vote, Senator?

    August 3, 2009 04:06 pm at 4:06 pm |
  23. SS

    McCain is responding stupidly!!!!

    August 3, 2009 04:07 pm at 4:07 pm |
  24. Stephen, Naperville, IL

    This is a well reasoned explanation. It also points out a number of specific instances where the judge acted as a legislator rather than a judge. I am glad that McCain spent the time to explain the rulings by Sotomayor that show her to exceed her authority. I understand why she should not be on the supreme court, why he voted against her before, and why he is voting against her now. That is a very bad set of rulings that she wrote.

    August 3, 2009 04:07 pm at 4:07 pm |
  25. Frantz Joseph

    This man is out of his mind. So this was a payback vote?

    August 3, 2009 04:07 pm at 4:07 pm |
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