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. JR

    well there goes the Latino vote.

    August 3, 2009 03:58 pm at 3:58 pm |
  2. AZBY

    Old McCain has lost his credibility on politics. He sold himself to the extreme right wing ideology and the most important, to the gun dealers.

    August 3, 2009 03:58 pm at 3:58 pm |
  3. Rick from Chicago

    Firs he votes against a MLK holiday and now he votes against Sotomayor.

    This guy just simply dislikes anyone with more melanin than Morrissey!

    And yet he's crying about how unfair the media has been to "innocent victim" Palin when every time she opens her mouth it's another soundbite full of lies and insanity?

    He'll be reduced to Life Alert commercials when he loses his senate seat next year.

    August 3, 2009 03:58 pm at 3:58 pm |
  4. Mr. Moderate

    Looks like the Limbaugh Lemmings got to him......

    August 3, 2009 03:59 pm at 3:59 pm |
  5. Florida Joe

    Let's get this straight Palin was qualified to be VP with her horrible track record but Sotomayor with her outstanding 17 year mainstream record is not qualified because somone voted against a Latino in 2003?????
    Sound like the same type of logic McCain used to run his bid for the White House. Time to retire johnny to one of your many houses...........

    Say goodnight Johnny

    August 3, 2009 03:59 pm at 3:59 pm |
  6. Post always rejected by CNN as well


    After you've said all that in your statement, Sotomayor still will be a Supreme Court Justice. So, you've really just wasted time.

    August 3, 2009 04:00 pm at 4:00 pm |
  7. Jake AZ

    That's tit for tat. We didn't vote for McCain ... so McCain's not going to vote for anything Democratic.

    How unamerican the Republicans have become.

    August 3, 2009 04:00 pm at 4:00 pm |
  8. ken

    Poor old man!

    August 3, 2009 04:00 pm at 4:00 pm |
  9. zago

    McCain, the Palin's picker has enough judgment to judge Justice to be Sotomayor. Get out of here keating 5

    August 3, 2009 04:00 pm at 4:00 pm |
  10. seebofubar

    Unlike Democrat self serving stooges, this man is doing what he believes is right regardless of how it effects his re-election. I know that Democrats have a hard time with words like conviction and ethics and honesty but if you try hard enough and study a little, you may eventually grasp the concepts.

    August 3, 2009 04:01 pm at 4:01 pm |
  11. Bob

    Let's see, Johnnie boy.. Estrada had NO, absolutely no judicial experience on either the local, state or federal level. He refused to release any of his writings so anyone could see how or if he applied the law.

    While prior judicial experience is not a constitutional requirement, your logic is that of an old, befuddled fool – and hypocritical. You compare that which has no comparison. And while you maybe were once a great American – that time is long past.

    I don't care how you vote in this matter – I am just glad you lost the election. You prove every day how we dodged the big one with that!

    August 3, 2009 04:01 pm at 4:01 pm |
  12. Vincent Petrosino

    McCain has destroyed himself since losing the election in 2008. He is bitter and more recalcitrant than he has ever been before. He cannot stand for Obama to be successful and now be becomes the GOP member he loathed just months before. Let's get this straight. Miguel Estrada was NOT as qualified as Sonia Sotomayor. He was not as experienced and this tit for tat on the part of the GOP and McCain is counter-productive. What terrible way to end your life and your career as a bitter old fool who almost gave us another incompetent fool as VP, Sarah Palin. This man is bitter and if he had been the maverick he was before running for election he would have gone down in the annals of political history as a real star.

    August 3, 2009 04:01 pm at 4:01 pm |
  13. joe

    everyone who is saying that mccain will not be re-elected because latinos wont vote for him is an idiot. john mccain, and every other conservative against sotomayor is not against her because she is hispanic. it is because she is a judicial activist. if you dont know what that is you should probably read what senator mccain actually wrote because i doubt you did before making these comments. only idiots think that racism plays a role in this process. and those same idiots will be the racists that dont vote for john mccain because he didn't vote for the latina nominee.

    August 3, 2009 04:01 pm at 4:01 pm |
  14. jj

    It looks to me if we get rid of all these old people, we can move on in this country to be a more perfect union...

    August 3, 2009 04:01 pm at 4:01 pm |
  15. Bob

    I totally agree with McCain.

    You are judged by the "walk" not the "talk". Her talk is great while her walk is very biased, very anti-white.

    Let's call it like it is. Every group wants the power to "stick it to the man". Watch out for what you wish for. African and Latin American countries are in a shambles. Strife ridden, hate ridden and jealously ridden.

    People say we need to really talk about race and what it means.

    I totally agree. When OJ Simpson got off the hook by a thoroughly racially biased jury in LA, the bottom line conveyed is "we stuck it to the man". Whites will never forget that, and will never forget that your roots are your roots. Period!

    August 3, 2009 04:01 pm at 4:01 pm |
  16. Cheryl

    Well I guess he must have voted against Bush's nominees for the Supreme Court as thay have shown judicial activsim in some of their decisions.

    August 3, 2009 04:01 pm at 4:01 pm |
  17. Greg, San Francisco, CA

    It takes a special kind of stupid to believe that Judge Sotomayor is not qualified for the Supreme Court while holding the belief that Sarah Palin should be a heartbeat away from leading the free world.

    August 3, 2009 04:01 pm at 4:01 pm |
  18. Priscilla California

    Arizona, please do not send this man back to Washington again. Get rid of him in the next election. You have a large Hispanic population, use it to defeat him. He is using his vote as payback to the Dem.

    August 3, 2009 04:02 pm at 4:02 pm |
  19. Polar Bears Against Palin

    The only thing this guy ever did was drop bombs on villages over Hanoi. Quite pathetic.

    John McCain is a piece of garbage.

    August 3, 2009 04:02 pm at 4:02 pm |
  20. indyred

    What a surprise? lol

    August 3, 2009 04:02 pm at 4:02 pm |
  21. Steve in Kentucky

    This is the reason those who warn Obama not to give up on bipartisanship are wrong. He has nothing to lose. He will never get any bipartisanship in return.

    The Grand Obstructionist Party will vote against anything Obama proposes, nominates or even hints that he supports. It's mindless.

    August 3, 2009 04:02 pm at 4:02 pm |
  22. Commen Sense Reality Check

    You better start clinging to your guns and enjoy your property while you can because when she is in the court if you are a white male, have a gun, or value what you own.... forget about ......

    August 3, 2009 04:02 pm at 4:02 pm |
  23. eliot san diego

    You have to understand the Republican mantra. "I've got mine." They could care less about anyone who makes less than $100k a year. Anyone who makes less than that who votes or supports Republicans is simply not getting it. I am close to retirement age and Medicare is not enough. We need something else to keep senior citizens from slipping into poverty. You are all going to be there some day. Let's fix it now.

    August 3, 2009 04:03 pm at 4:03 pm |
  24. dominican mama 4 Obama

    OMG!! So you recognize that she has the qualifications, but you're going to vote against her to get back to the Democrats over Estrada??? What is this, the playground at recess?? Ever hear of two wrongs don't make a right? Taking the high road? Two negatives don't make a positive (well, except in math)? McCain, you're a spineless, double-talking, under-handed, canary singing, jet-crashing, adulterous, has-been. I can't even find a shadow of your former self.

    August 3, 2009 04:03 pm at 4:03 pm |
  25. Karrie

    I can’t believe he’s shooting down Judge Sotomayor’s nomination for political reasons. I think the old man’s getting senile. I didn’t know much about Sotomayor, so I watched some of the hearings. I gained total respect for her that day with her vast knowledge and total recall of cases. Maybe McCain should have watched as well, he might have learned something.

    He must feel very comfortable in his job, or he‘s getting cocky after his last run for President. With AZ’s high population of Hispanic voters, I hope they vote the old coot out.

    August 3, 2009 04:03 pm at 4:03 pm |
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