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. Dale

    Well spoken. But McCain is still a warmonger. His life experiences have led him to the conclusion that war, death and destruction are normalcy, and peace is just time for planning and preparing for the next war.

    August 3, 2009 04:12 pm at 4:12 pm |
  2. Vgirl1

    The voters of Arizona will determine if McCain is right or not in taking this position on the nomination of Judge Sotomayor.

    My bet is that he will pay dearly for his No vote by losing his seat in the senate just as he lost his bid for the presidency by taking up the biased positions and rhetoric of his party during that campaign.

    I guess he forgot his own words as uttered this weekend about Republicans being lost unless they can woo back Hispanic voters. This decision does not help particularly when he uses the tit for tat excuse used by Republicans in the hearings as his rationale.

    No guts to stand up for what he says he believes in, no reason for Arizona voters to keep him. Once again, McCain goes for Party First instead of Country First.

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

    Maybe Latinos in Arizona will vote this guy out next time.

    Not qualified to sit on the bench? this coming from a guy who picked Sarah Palin as his VP running mate. Puh-leeeze!!!

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

    Why would an Hispanic vote Republican after this? The GOP's only semi-friendly politician has now screwed Hispanics over.

    August 3, 2009 04:13 pm at 4:13 pm |
  5. Rick CT

    McCain is only following the standfards set be the Dems, including St. Barack. Read St. Barack's speech where he opposed Roberts while acknowledging that Roberts was fully qualified in every way as a legal scholar and adherant to his profession.

    August 3, 2009 04:13 pm at 4:13 pm |
  6. Gus The Willie

    McCain has finally driven the final nail into his political coffin with the Hispanic voters of Arizona. But the transplant "Old People" from the other parts of the country now getting skin cancer will once again prop him up to another term by electing him to the Senate the next time around. We do very much wish he would retire or just fade away. Anyone picking Palin for a running mate needs to be in a nursing home. So to all my fellow Arizonians, lets vote this has been, and put out to pasture. We need a new face in place of this dinsaur.

    August 3, 2009 04:13 pm at 4:13 pm |
  7. pa. independent

    Unbelievable! McCain ran for POTUS reminding us he was a POW! He felt his life story entitled him to the presidency!

    I hope AZ is paying attention and come out in masses to vote this hypocrite out!

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

    He's only against her because he's a Republican. Plain and simple.
    The party of guns and hate.

    August 3, 2009 04:14 pm at 4:14 pm |
  9. Ron L

    Senator McCain is becoming a BIGGER and BIGGER disappointment with each passing year. This explaination for voting against Sotomayor is just LAME. Nothing in her record shows her to be the Republican buzz words "activist judge".
    AMERICA we should quit caring what he says, he was willing to put Ex-Governor Palin one heartbeat away from the Presidency.One of the most reckless acts we have seen in politics for quite a long time.

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

    Amazing how all the libs are turning this into a race issue when they want to run and hide from their own standards.

    August 3, 2009 04:15 pm at 4:15 pm |
  11. Joanne

    Thank goodness McCain didn't win! CNN will keep his name on the front page daily. Excuse me, CNN (a.k.a. FOX NEWS jr.)

    August 3, 2009 04:15 pm at 4:15 pm |
  12. Royster

    So...McCains REVENGE against the Dems filibuster 7 years ago......

    It is amazing, credentials are ignored for a tit for tat opportunity to slam the other political party.
    Meanwhile the people of this country wait for representation while GOP senators stall and stall.

    Is McCain's idea for the Supreme Court Sarah Palin???

    Being a hero 50 years ago...does not make you credible now, and does not make your point of view intelligent. Was McCain a hero then? Yes. Does this mean I have to listen to him now? NO!!!

    August 3, 2009 04:15 pm at 4:15 pm |
  13. Michael

    Makes me feel better that I did not vote for him. Politics as usual. Did he really have to mention Estrada?

    Now President Obama, please step up to make me proud that I voted for you (and not that I'm proud to have not voted for McCain). You haven't yet.

    August 3, 2009 04:15 pm at 4:15 pm |
  14. No other comparison?

    Did it occur to anyone in the Republican party to compare Sotomayor to any other nominee? Surely, there were other Non-Hispanic nominees who more closely matched Sotomayor's qualifications... Or, are we to believe that the only qualification you wished to match was her ethnic background?

    We can disagree about philosophy, but it is unconscionable to assume that the only other nominee that compares to Sotomayor is another hispanic.

    August 3, 2009 04:16 pm at 4:16 pm |
  15. joe Publicini

    So, John McCain is standing by his principles. But apparently standing by principles is only inspiring when you are a Democrat.

    August 3, 2009 04:16 pm at 4:16 pm |
  16. You lose all credibility when you say Palin is smart

    Um, he also doesn't think Sarah Palin is a quitter.

    So his judgement is complete garbage.

    August 3, 2009 04:16 pm at 4:16 pm |
  17. Stan

    Why are people shocked that a republican is against Oblama's selection. Sorry, Obama. She has the education and probably the experience, but will she be fair. Will she be able to seperate the law from personal feelings. How will she treat immigration cases where the issue is to rid the USA of illegal's? My grandparents came to America from Italy. They entered legally, lived legally, waited their time until they could become citizens. Why can't Mexicans wait like the rest of the people that come to America for a better life. Why are we accused of being against family because we ask an illegal to go back to their country. Wake up and realize that a broken law is a broken law. You break it you pay. PERIOD.

    August 3, 2009 04:16 pm at 4:16 pm |
  18. Bob

    Is John really relevent anymore...Come on, who is in the GOP...Who cares what they think?

    August 3, 2009 04:17 pm at 4:17 pm |
  19. dwight

    indy 08, austin tx,d.sangiovanni, lacrossemom. please click on cnn's politics tab on their home page ,then watch John McClain's interview with cnn's John King.He talks about Sarah Palin the future of the republican party.Pay attention to his comments on hispanics at about 2:50 into the interview.I don't think he knows how dumb he is.

    August 3, 2009 04:17 pm at 4:17 pm |
  20. AEK

    I'm sure that vote will go over great in the state he represents that has such a high percentage of Hispanic voters. But must follow the party line at all costs just like Rush Lamebrain says!

    August 3, 2009 04:17 pm at 4:17 pm |
  21. Angie in Pa

    Mccain just lost AZ!

    August 3, 2009 04:17 pm at 4:17 pm |
  22. CF

    Democrats = "All people are equal and deserve equal rights and respect."
    Republicans = "All upperclass, white, conservative, pro-gun, anti-choice, anti-science Christians are equal and deserve respect. Nobody else is worth even thinking about."

    August 3, 2009 04:18 pm at 4:18 pm |
  23. John

    Judge Sotomeyer will be seated regardless of McCain or what some of you think. For all the bigots and those who believe that people of color are the root of all your problems, it is going to be a very painful ride for you guys. Yeah, the words you spew mean jack, so use these cowardly blogs to throw your mess; it is the last place you will be able to hide.

    August 3, 2009 04:18 pm at 4:18 pm |
  24. Brady

    Well said, John McCain, well said. I agree that justices of the Supreme Court should practice judicial restraint rather than judicial activism. While Sotomayor has said that she practices judicial restraint, her record clearly shows that she endorses the practice of judicial activism.

    John McCain definitely makes mistakes (his choice of Sarah Palin as his vice presidential candidate), but he is one of the few people left in Washington, DC who I actually believe in.

    August 3, 2009 04:18 pm at 4:18 pm |
  25. kdauto

    Thanks for your opinion Mr McCain. Time for your nap now!

    August 3, 2009 04:18 pm at 4:18 pm |
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