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. Florence Fernandez

    I am of spanish origin and although I am very proud of Sotomayor nomination to the Supreme Court I do agree with Senator McCain' premise that as Judge Sotomayor time and time again has tried not to comply with the law and constitution but to to MAKE LAW.
    I applaud Senator McCain and any other Senator who dare who speak the truth even if in our current climate speaking the truth is not political correct.

    August 3, 2009 04:07 pm at 4:07 pm |
  2. Will

    Wow how surprising to see JMac pandering to the sour grapes community.

    August 3, 2009 04:08 pm at 4:08 pm |
  3. nom deplume, esq.

    The gist of these comments are:

    1. How dare the GOP vote against a qualified jurist simply because of her judicial and/or political philosophy?

    2. How dare the GOP put forth candidates for judgeships that hold different judicial and/or political philosophies than us?

    Fact is, by putting this out there, McCain inadvertently dared the left to show their hypocrisy. The left conveniently obliged.

    August 3, 2009 04:08 pm at 4:08 pm |
  4. HBO

    His reason (and only reason) for doing this is he is a bitter, old, lying, under-acheiving, spoiled brat... (not to mention President Obama kicked his behind with ease in November)....

    What's worse is that he still think that broad, Palin is a winner?
    (why? he is also dirty, old geezer).

    August 3, 2009 04:08 pm at 4:08 pm |
  5. angel

    I wonder what the Democratics will be saying if this particular nomination was a Republican one and knowing all we know about Ms. Sotomayor...hum??

    August 3, 2009 04:08 pm at 4:08 pm |
  6. Julia Madera

    This is one of the reasons I am thankful there is a resurgence of the independents in this country. Neither party have people like Trevor Drown from Arkansas who will dare to make a difference and run as an independent. He is refreshing as a leader and he is the type of election official this country will do better with.

    August 3, 2009 04:08 pm at 4:08 pm |
  7. Todd

    For all the complaining about Democrats using partisian politics, the Republicans seem to know how to do it as well. The difference is that they Republicans make no excuse for it, they come right out and say "we're doing this, becuase you did it to us". Really mature. That is why we need every single one of the Republicans OUT of office. They are sore losers, who would be making the same bad decisions they always did if they were in charge. Thank the many smart voters for the change we are getting.

    August 3, 2009 04:08 pm at 4:08 pm |
  8. blf

    Just remember, McCain chose the Bimbo Palin for VP. With judgement like that, we can all be glad he and she did not win the election! For once, the smart ones won.

    August 3, 2009 04:08 pm at 4:08 pm |
  9. jo

    I encourage everyone to keep a pad of paper on their fridge door – jot down everything the GOP is doing and REMEMBER it when it's time to vote.

    August 3, 2009 04:09 pm at 4:09 pm |
  10. Rob in Detroit Mi.

    I can't wait until midterm elections ,some peopl need a rest.

    August 3, 2009 04:09 pm at 4:09 pm |
  11. Randolph Carter

    That wacky old coot named McCain
    Never could get the hang of a plane
    He'd get in the air
    And keep it up there
    And then he would crash it again

    Have a nice day!

    August 3, 2009 04:09 pm at 4:09 pm |
  12. malclave

    Per the Obama Standard, all Republicans should vote against Sotomayor.

    You libs are just hypocrites.

    August 3, 2009 04:09 pm at 4:09 pm |
  13. gman007

    Liberals are too emotional.

    Senator McCain has put forward sound reasoning.

    All you want to do is attack him personally.

    August 3, 2009 04:09 pm at 4:09 pm |
  14. Bryan

    McCain and other republicans don't want justices to legislate from the bench and want them to strictly follow the Constitution and not make changes to it. Yet, republicans supported amending the Constitution to ban gay marriage. Ok, so I guess we'll make changes to it only on their terms...

    The Constitution is not perfect; it was framed in 1776. The United States today in 2009 is much different from the United States in 1776 and sometimes the Constitution seems old and outdated.

    When all the old, conservative men on the bench legislate, they say they are strictly interpreting the Constitution, when in reality they just don't want this country to change, whether it's for the worse or the better.

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

    So, does his daughter still support him? Not much of anyone else does.....

    August 3, 2009 04:10 pm at 4:10 pm |
  16. Michigan Deb

    John McCain States.......

    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.

    Read between the lines Americans...he is just mad that this man was filibustered, so for pay back he won't accept voting in Sotomoyer. How childish. I am sooooooooooo glad he id no win the Presidency...imagine that kind of world....no thank you.
    You can be quiet, and sit down now Mr McCain. You are also probbably one of those senators who are using scare tactics, and clout with special interests to try to block health care reform too....WE NEED HEALTH CARE REFORM MR. SENATOR. PERIOD!!!

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

    When liberals continue to chant the same slogans over and over, it's hard to believe that there is any independent thinking among them. They go from "change," "yes we can," and now calling republicans "the party of no." Do the liberal supporters offer anything other than slogans?

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

    "an excellent resume and an inspiring life story are not enough to qualify one for a lifetime of service on the Supreme Court"

    WHAT???

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

    This old, senile, demented, shell of what once was a good man no longer can think for himself. I sympathize with him due to the horrible wounds he has endured, but he can not make rational decisions that affect this country. Put him out to pasture with the rest of the old war horses. Palin will care for him, she's pro-insanity, and proves it several times a day.

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

    Okay, John – You lost the presidential election because you picked Sarah Palin (no guarantee you would have won anyhow, though). Now you just lost the Arizona Senatorial election because you won't vote for Sotomayor. Guess you're tired of politics, finally, huh. Well, since you are now officially a "lame duck" why don't you go ahead and follow in the footsteps of your beloved Sarah, and save yourself the trouble of running in 2010 and just "quit" to save the people of Arizona the "expense of having to support your efforts to run" for the Senate and "wasting all the time and energy your re-election" effort would take, instead of being a "real Senator for Arizona for the next year and two months. Just quit now, John – cause your gonna lose!!

    August 3, 2009 04:11 pm at 4:11 pm |
  21. Mary Koral

    McCain used to be a man to admire. He lost that by dragging the party and potentially the country down with his choice (?) of a running mate. Now, he still claims to admire a woman who parades her family in front of the cameras and then whines when she receives publicity that is not favorable. He will vote against an articulate, intelligent woman? Hmm, perhaps we smell some whining of McCain's own, some payback. He no longer has my admiration. I deplore his tactics.

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

    Most responses here seem to indicate most folks didn't read all that McCain said, or didn't think intently about what he was saying.

    If the previous posters would reread their own comments perhaps, in many cases, a certain degree of personal embarrassment would set in becaluse of the shallowness they would see in their own thinking.

    The comments for the most part seem to be written by people with a great deal of prejudice against McCaine, the man, that causes the people to be deaf to what the man is saying.

    This is perhaps one of the greatest contributing causes to the decline of our democracy.

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

    I don't know why the public and hispanics are surprised by McCains decision. He voted against a holiday for Martin Lurther King and only when he ran for President did he apologize. If he did not except a prominant black as Martin Luther King what makes you think he is going to change his ways for a hispanic judge. He is not running for President now, so the phonyness is not necessary anymore. WAKE UP and smell the coffee that he pores.

    August 3, 2009 04:11 pm at 4:11 pm |
  24. George Guadiane - Austerlitz, NY

    Not that his attempt to punish the Democrats will stop her confirmation, I find it remarkable that Mr McCain would even make this argument.

    He was going to bring the parties together as president...
    As NOT President, I guess a united Nation isn't really important, neither is justice, integrity or continuity. What a crusty old dried up demoralized chump.

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

    You people are pathetic. John McCain could not even pick a VP and he has the nerve to comment about the Supreme Court nominee. He does not know if any one is qualified or not. He thinks that because he was a POW he should have been president. This man has been in the spotlight long enough. I sure hope that he is voted out in 2010.

    August 3, 2009 04:11 pm at 4:11 pm |
1 2 3 4 5 6 7 8 9 10 11 12