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. GOP = NOOOOOOOO way

    That Arizona heat has finally dried up his backward, delusional brain. Latinos will send him packing come re-election, at least all of the sane Latinos will. Rush the Drugster and the rest of the fringe GOP has really got him by the short and curlies.

    What a tool!

    August 3, 2009 04:18 pm at 4:18 pm |
  2. Steve

    Reading the above comments I'm beginning to worry and ask myself, who's running this country using the old tool by propganda? Is it the blacks, the Latinos , the Whites or is it CNN? I get the feeling lately that it's all of the above except the whites. McCain is 100% wright, even though I did not vote for him and personnlay I don't like him. The whites have been muzzled, and I'm sure Jack you will not publish this comment because you guys are afraid of the truth. Good example that CNN has this Roland Martin guy on TV. He thinks his philosophy and values are above the law and Obama is God. CNN has him on almost every night when there is a controversy of racism.

    August 3, 2009 04:19 pm at 4:19 pm |
  3. Mark in Miami

    Actually, the dems rejected Gonzales, who would have been the first Latin Court Justice. Don't try to blame the republicans on this one.

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

    McCain is another out-of-touch guy who cannot stand that this country is updating. Change is good and you Mr. McCain are part of the problem.

    August 3, 2009 04:20 pm at 4:20 pm |
  5. John Stillman

    Too bad there isn't a way to ask McCain to name or explain all the cases and examples he mentioned. I am sure he is just parroting someone elses thoughts as this subject is well beyond his level of understanding. This is the same guy that said the fudamentals of the economy were strong, picked Sarah Palin and said she was qualified and didn't even know how many houses he owned.

    August 3, 2009 04:20 pm at 4:20 pm |
  6. Braaq

    Say what you want about McCain. I don't necessarily like him either but he is right on with his assessment of Sotomayor as an acitvist judge. She should not get the confirmation for that reason alone.

    August 3, 2009 04:20 pm at 4:20 pm |
  7. Thea

    This is all so interesting coming from a man who felt that SARAH PALIN was qualified to run with him as VP.....And to use as an example – Mr. Estrada – "someone the Latino community could have taken great pride in" your words...Are you joking?....Did you and the other good ole boys come up with this rebuttal while sitting around in some country club after a round of 9 holes, smoke a cigar, drink some brandy and talk about the concerns of this country being taken over by those lefties and people of color????....this is such a shame, that you would rather have an ill spoken, ill equipped hillbilly then someone who is better qualified then yourself in your position....and there isn't a race problem in this country??!!!!....When will we be judged by or content and not by or color????...when will that happen Mr. McCain.....

    And one last thing, was there a coin flip on who would stick his neck out there on this one?....

    August 3, 2009 04:21 pm at 4:21 pm |
  8. Jason

    Its going to be hilarious when he loses his reelection bid in 2010!

    August 3, 2009 04:21 pm at 4:21 pm |
  9. MsBettyJ

    Are you serious? McCain endorsed Sarah (the village IDIOT ) Palin and he can't endorse (vote for) a Judge with proven academic and judicial experience! Give me a break!

    August 3, 2009 04:22 pm at 4:22 pm |
  10. hadelaide

    I expected nothing less from the grumpy old man. After Pres. Obama threw him a lifeline by nominating Napolitano, who was seen as a threat to his re-election bid, he is spewing his silly rhetoric. He also had the gall to say that PO hasn't brought change to Washington. He expects change to happen in 6 months when there is an entrenched behavior of lobbyists controlling congress.

    This senile fool need to be given his retirement package by the folks of Arizona. He needs to retire to his porch where he can gladly shout at the moon and the kids to get off his lawn.

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

    I see a lot of very bitter people that hate the republican party for their own personal problems (I.E. an economy that is OUR fault).

    I thought the letter was well written, and he expressed his point of view very well.

    August 3, 2009 04:22 pm at 4:22 pm |
  12. Tom L

    Classic comments by the left. John McCain puts together a well thought out, unemotional reasoning as to why he will not vote for Sotomayor. He is bashed and made fun of by the Democrats on this site, some taking personal jabs at his service defending our country. What a surprise. Liberals are all the same...either think like they think or you are an idiot. How dare anyone ever have an opinion that differs from them.

    August 3, 2009 04:22 pm at 4:22 pm |
  13. Doug, New Jersey

    I love how libs are calling him racist, yeah racist to vote against an activist judge who thinks her race makes her superior but nothing wrong with denying fair-minded strict constitutionalists like Estrada and Alito, at this point there may not be a Democrat left in America who has integrity.

    August 3, 2009 04:23 pm at 4:23 pm |
  14. Trade Freedom for Security, Lose Both

    "Whether it is in the United States or in mainland Europe, written constitutions have one great weakness. That is that they contain the potential to have judges take decisions which should properly be made by Democratically elected politicians." - Margaret Thatcher

    August 3, 2009 04:23 pm at 4:23 pm |
  15. virginia for obama

    Sounds like a "PAY BACK VOTE".

    August 3, 2009 04:23 pm at 4:23 pm |
  16. thx1138

    McCain distorts the truth of course.

    Estrada lacked any prior judicial experience at the local, state, or federal level.

    Not the same level of experience as Sotomayor.

    August 3, 2009 04:23 pm at 4:23 pm |
  17. jason, tx

    Another old, bitter white guy attempting to hold onto old school power. What a dork.

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

    This won't go over well with your younger twin, Lindsay Graham. Didn't he proclaim that he would vote for Sotomayor? You're breaking with him? Tsk, Tsk, John. Why you ole' maverick, you! Bye, bye.

    August 3, 2009 04:24 pm at 4:24 pm |
  19. Larry

    John McCain continues to be a really nice guy who chose the wrong occupation. What a waste of talent ! He is making so many bad choices it is becoming difficult to remember he is a war hero.

    August 3, 2009 04:24 pm at 4:24 pm |
  20. Gary

    I'm not a Republican, and I'm not a conservative on most issues. I do agree with McCain on this one, though. Sotomayor is a weak nominee to the Supreme Court.

    August 3, 2009 04:25 pm at 4:25 pm |
  21. Palin for Supreme Court Justice

    I bet McCain would vote for Sarah Palin for mavericky!

    August 3, 2009 04:25 pm at 4:25 pm |
  22. Dutch/Bad Newz, VA

    This is what the President meant by changing the face of Washington. Getting all of you old, no new idea, divide and conquer politicians out of here. The plan is working well so far. Rahm Emmanuel is like an evil genius. Republicans are digging their own graves.

    August 3, 2009 04:26 pm at 4:26 pm |
  23. Barry NiFong, Hawaii

    You can't trust McCain since he doesn't support us in AZ about illegal immigration. Obama lied again...Geithner said taxes are going up on people making less than $250,000.

    August 3, 2009 04:26 pm at 4:26 pm |
  24. Margaret Anderson

    Senator McCain, after the last election this is not a surprise from you. The man I admired in 2000 must have sold his soul to the Republican party.

    August 3, 2009 04:26 pm at 4:26 pm |
  25. The skys are bluer in Seattle

    McShame is being his usual self on the dark side of life fallowing along in the footsteps of Cheney,Bush,Rush ,Hannity, Anal Coulter ,Sanford,Ensign, Beck and the list goes on.

    By the way McShame where is your top oft he line health insurance with or coming from,where is Veterans health care from? where is Medicare and Soc Security coming from or with ?
    Are the lines rather blurred as you read this?
    Mc Shame did you forget that is the Gov run programs and just what you are so hell bent against ..Answer that ?

    August 3, 2009 04:27 pm at 4:27 pm |
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