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Sotomayor NOT first Hispanic Justice -- Cardozo was

Whatever happens with the confirmation of President Obama's Supreme Court nominee Sonia Sotomayor, one thing is clear: she will not be the first hispanic or Latino to serve on the Supreme Court. This is a historical -- and not a predictive -- statement.

The reason Judge Sotomayor will not be the first hispanic on the Court is that the first justice of hispanic origin was already nominated -- by a Republican President -- and confirmed by the Senate to serve on the Supreme Court more than 70 years ago. This would be Justice Benjamin Nathan Cardozo, who also has the distinction of being the second Jewish justice on the Court.

A diverse array of sources from a mural of hispanic achievements at the Guatemalan fried chicken chain Pollo Campero to a post on leading liberal blog site Daily Kos make the case that Cardozo was actually the first hispanic justice. Nominated by Herbert Hoover to serve on the Court in 1932, Cardozo was descended from the Sephardic Jews, who lived in the Iberian Peninsula that includes Spain and Portugal.

Whether his ancestors came from directly from Spain is hard to determine -- and the geographical boundaries of modern Spain and Portugal have changed a few times -- but as the Daily Kos poster (sympathetic to Sotomayor) notes, "there is no question that Cardozo was a Portuguese American." 

The Kos poster points out that while the U.S. Census Bureau doesn't consider Portugese descent to qualify one as hispanic,  "the U.S. Department of Transportation and the Small Business Administration, in addition to other federal, state, and municipal agencies, do recognize Portuguese under the umbrella term of Hispanic."

If coming from Spain and Portugal does not get one counted as "hispanic," why should the simple step of coming through Brazil (in the case of Portugal) or the rest of Latin America automatically get one placed in this category. The Kos poster argues that "perhaps it would be more accurate to say that Sotomayor would be the first non-white Hispanic on the Supreme Court."

But even Sotomayor's "non-whiteness" is unclear. This is because a  majority of those who identify themselves as hispanic to the Census Bureau also check their race as "white" on the same form. The magnitude is so large that many polls have to separate out hispanics from whites through the demographic category of  "white not hispanic."

It is also not simply a matter of saying that a certain amount of Native American blood makes one a non-white hispanic. There are many non-hispanic whites who can trace part of their ancestry to Native Americans, yet are still classified as "white." Moreover, the government really shouldn't be in the business of determining how much "blood" of an ethnic or racial groups an individual carries.

None of this dicussion is to take away from Sotomayor's achievements and humble origins (although this alone doesn't justify a Supreme Court seat). But if we are going to celebrate the naming of a hispanic appointment to the court, we should also celebrate the diversity within the hispanic community. As well, we should reflect on the absurdity of the government's racial and ethnic classification system. I wrote an article covering some of this absuridy in Investor's Business Daily in 1998

In any event, Justice Cardozo wouln't be a bad path for Sotomayor or whoever becomes Obama's justice to follow. Cardozo ended up being a one of the Court's liberals, but back then the liberals on the Supreme Court were the ones who practiced judicial restraint by not striking down New Deal laws.

Yet he stood up to President Franklin D. Roosevelt in one very important descision. In the Schechter Poulty case, Cardozo wrote a concurring opinion striking down the National Industrial Recovery Act, which mandated broad industry price and output controls. The Court ruled that Congress had unconstitutionally delegated its lawmaking powers to the boards enforcing these controls. "The delegated power of legislation which has found expression in this code is not canalized within banks that keep it from overflowing," Cardozo wrote.