August 3rd, 2009
03:28 PM ET
12 years ago

McCain to vote against Sotomayor

[cnn-photo-caption image= caption="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. Cheri

    Wow.... the republicans must not need the hispanic vote come 2010 and beyond.

    August 3, 2009 04:37 pm at 4:37 pm |
  2. Chris D.

    Supreme Court Justice, Sotomayor, has a beautiful sound to it.................Mr. McCain we don't need your vote.

    August 3, 2009 04:38 pm at 4:38 pm |
  3. BoSox, Boston Ma better retire to shadey Aches....your miserable career is over. You will be voted out of office. You barely made it out of the academy and was a loose canon in the service.

    August 3, 2009 04:38 pm at 4:38 pm |
  4. Bridgette

    He has a right not to vote for her if he does not believe she is the best person for the job. But he also has to be prepared to take the consequences of this vote. I am sick and tired of Democrats and Republicans fighting one another. And I am not talking about the politicians I am talking about us the citizens. Maybe if we stop this foolishness, bickering, and fighting back and forth maybe they will stop it.

    August 3, 2009 04:38 pm at 4:38 pm |
  5. Richard L

    Nothing new from the "Party of No". It was Republicans who wanted Harriet Miers, of all people, for the Supreme Court. Enough said.

    August 3, 2009 04:38 pm at 4:38 pm |
  6. LMC

    Where is Sen. McCain's famous "reaching across the aisle" now? Lately he has definitely been in lock-step with the Republican Party. Do you suppose the Republicans would have backed ANY Democratic appointment? So far only Senator Graham has had the backbone to stand up and announce he will vote for Judge Sotomayor.

    August 3, 2009 04:38 pm at 4:38 pm |
  7. paul coke

    Typical old school attitude that nothing but old white guys should be court justice. There is a good reason why he lost the election, just out of touch.

    August 3, 2009 04:39 pm at 4:39 pm |
  8. Steve from Arizona

    I guess John McCain does not mnd committing political suicide. I hope all the other Latinos in AZ remember his vote against a fine Latina! I, for one, will be there to remind them.

    August 3, 2009 04:39 pm at 4:39 pm |
  9. Lola

    Once again, that is why he is NOT the president. He said that he wanted whats best for the United States, but he has done nothing when it comes to working with the president. He must of forgot what he said or as he showed during the campaign, he doesn't get it. So he needs to get over the fact we did not vote for him, move on work with the president, not always against him. We have the opportunity to once again show the world how great a nation we are, but the republicans must not want that.

    August 3, 2009 04:39 pm at 4:39 pm |
  10. Suzan

    Look at what this man picked for a running mate to be VP of this country (and lost him the election) and now he says this woman isn't good enough to be on the Supreme Court .....I hope every latino will never vote republican again after the way these white begots treat them.......and I am a white woman........the GOP are racists and if you can't see that you are blind

    August 3, 2009 04:41 pm at 4:41 pm |
  11. Thea

    News flash...ALL JUDGES ARE ACTIVIST idiots, it is like leading sheep to the edge of the cliff, they put some neat little title on something and there goes the masses right over the edge. This is the reason for wanting the White House, you get to pick Judges that possibly lean to your views.. The Presidency is a power game and very narcissisitic...McCain is bitter because he did not get that opportunity. Do your research on some of the rulings and opinions by these Judges of the highest court in the land, only a small few have swayed from the political party who picked them. i.e., Clarence Thomas, he clearly is an "Activist" for the political extreme isn't the color of ones skin......

    August 3, 2009 04:41 pm at 4:41 pm |
  12. Jeanne

    Most of us want a qualified candidate who upholds the constitution, not one who "makes policy". If the admin wanted a "Hispanic" candidate, they could've done better.
    I was disappointed in her confirmation hearings because she didn't seem to be very articulate, and apparently has changed her entire judicial philosophy since the time she's been nominated.
    Her record on cases appealed to the Supreme Court seems to show her to be either a lazy judge or not as intelligent as she should be for the position.

    August 3, 2009 04:41 pm at 4:41 pm |
  13. Maria Perez-Smith

    Republicans will not get us Latinos's votes in any future elections. Period. I used to like Mccain , but he showed to be interested more in keeping white men in power and us the rest of the Republicans, are afraid to be taken any power by minorities. Shame on you Maccain and the rest of the Republicans.

    August 3, 2009 04:41 pm at 4:41 pm |
  14. Tom McCarey

    What a sad statement that an elected official from a state with a large and growing Latino population would oppose Judge Sotomayer's nomination. And why? She is clearly qualified. Did Mr McCain previously oppose her ascension to the federal level? Or is this a new tool in the box of a politician who cares more about wimpily acceding to a powerful lobbying effort by the NRA than being genuine and seeing that his constituents' needs are met. It will be a fine day when this ilk are made unemployed.

    August 3, 2009 04:42 pm at 4:42 pm |
  15. Joseph, Los Angeles

    Shame on McCain.

    August 3, 2009 04:44 pm at 4:44 pm |
  16. James

    Sarah Palin has nothing to do with this. Why do liberals insist on completely diverting from the issue at hand and being so emotional, angry and bitter? I'd actually be interested in hearing a logical critique of this letter from a liberal, but that seems to be non-existent on this site. Notice that almost every single liberal response insults McCain personally, refers to something completely unrelated or just flat out whines like most liberals do.

    Just ONCE I'd like to see a liberal post a legitimate critique instead of hurling tired insults again and again. The fact of the matter is, she wants to legislate from the bench. That's not the job of a judge. End of story. I'd be a democrat if you guys weren't so ridiculously emotional and illogical.

    August 3, 2009 04:44 pm at 4:44 pm |
  17. AZ - GOP member

    McCain you we gonna loose all of our influence in our rich environment..

    August 3, 2009 04:44 pm at 4:44 pm |
  18. Republicans are the American Taliban

    HISPANIC VOTERS IN ARIZONA!!! Remember John McCains twisted logic on election day!! Sarah Palin is qualified yet Judge Sotomayor is not!!!

    August 3, 2009 04:45 pm at 4:45 pm |
  19. Dev

    What's with all the posts on cnn political ticker coming from John McCain.

    I really did not expect anything other than this partisan posturing from GOP. GOP is so predictable.

    August 3, 2009 04:46 pm at 4:46 pm |
  20. Joe

    McCain should be the poster child for Term Limits !

    August 3, 2009 04:46 pm at 4:46 pm |
  21. Connor

    This should be no surprise. He has been straight line party since the day after the election. He blasts Obama for not being bipartisan, and I don't see him reaching across the aisle. For a senator running for election in a state with a large number of Hispanic votes, his choice to oppose anything Obama could cost him dearly. Why do we continue to listen to this sad old man.

    August 3, 2009 04:48 pm at 4:48 pm |
  22. Cee

    About TIME John stood on Principal. The POLITICIANS have been "Dummying Down " America and HER principal;s for FAR TOO LONG ! Go John, GO.

    August 3, 2009 04:48 pm at 4:48 pm |
  23. Ms. Cil

    I think John McCain penned a very thoughtful and detailed explanation of his rejection. My only problem is that he went on and on about Miguel Estrada and I just didn't see the relevance – except that both nominees were Latino. Why is he bringing that up anyway???

    Maybe he's trying to show that he's not against Sotomayor because of her ethnicity. I believe his argument would have been stronger to leave Estrada out of it totally.

    August 3, 2009 04:49 pm at 4:49 pm |
  24. Maria Perez-Smith

    Mccain should retire to Alaska with the other idiot Palin.

    August 3, 2009 04:49 pm at 4:49 pm |
  25. Lee in New York City

    Well, we know what good judgment John McCain has..... need we be reminded of the Palin fiasco? This could only be a plus for Sotomayor. John and Cindy should retire...they dearly need the brain rest.

    August 3, 2009 04:49 pm at 4:49 pm |
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