The American Spectator

John McCain sometimes gets it very, very right indeed. It’s not just the eloquence of his statement opposing Judge Sotomayor’s promotion (click through to the further link for the whole speech), but the substance of it, that is extremely admirable. I wish every American could read, or better yet watch, McCain’s announcement. I also wish that McCain’s friend Lindsey Graham would read it, learn it, and memorize it — and act accordingly. McCain explains what it is all about:

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….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.