Sotomayor NOT first Hispanic Justice — Cardozo was

by John Berlau on May 26, 2009 · 9 comments

in Odds & Ends

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.

Joe May 26, 2009 at 11:38 am

I found that same information out at the Kos along with a poll they had. It was almost 2 to 1 in Cardozo's favor, most think he was the first hispanic Justice. I expected to find the opposite at the Kos, since they're extremely left-wing and Obama worshipers. I wish NBC would pick this up, they're still saying Sotomayor is the first.

Renato May 26, 2009 at 3:21 pm

What is the controversy all about? Ignorance, pure and simple.

Justice Cardozo was of Portuguese descent and Portuguese people are not Hispanics, end of story. I'm Portuguese and we are not Hispanics. We speak Portuguese, not Spanish. Our cultures are very much separate and distinct on all aspects. You don't call the French hispanics, do you? Yet they're next door to Spain. Yes, they speak French and we speak Portuguese. Portuguese may sound similar to Spanish, but so does Italian, do you call Italians, Hispanics?

The common factor is Latin as the linguistic root, that is all. The Portuguese may be regarded as Latin, which is not the same as "hispanic" which applies to those "from Hispania", or SPAIN!.

Sonia Sotomayor, if comfirmed, will become the first "HISPANIC" SC justice.

DePaiva April 1, 2011 at 8:05 am

Hispania included modern day Portugal as well as Spain. So your argument makes no sense.

Antonio May 27, 2009 at 7:06 am


I believe you have misconception of Hispania, Spain, and being Hispanic. Hispania is the Roman name for the entire Iberian Peninsula, regardless of nation. Thus whether one is Portuguese, Spanish, and even French, as a small part of France lies within Iberia, they can still be considered Hispanic. Furthermore, Spain (or rather España) is derived from Hispania, not the other way around as you have so indicated. It has more to do with place of origin than culture or language. As such Sotomayor can only hope to be the second Hispanic Supreme Court justice.

Henry May 27, 2009 at 9:42 am

Around 1492, when the Cardozos left, the residents of Iberia were not so separated. In fact many Spanish Jews sought temporary refuge in Portugal from the Inquisition. To settle matters, Cardozo was fluent in Spanish, which he would have to have learned at home.

bob May 27, 2009 at 5:59 pm

my wife's faily was expelled from spain in 1492. they first sought refuge in portugal. it's all hispanic to me. i wonder if Cardozo knew ladino, a language of the jews of that region, and it's still spoken in certain circles in israel. there is also a ladino newspaper.

Samuel May 28, 2009 at 3:22 pm

I'm Portuguese and I consider Cardozo (and myself) to be Hispanic.

Ergo, Sonia is the second Hispanic.

(also, if JC Watts were to be elected President of the United States, would we call him the "second African-American" President? Or would he be the "first African-American–non-mixed–slave-descended" President? And if Bobby Jindal becomes the first Indian-American President, will Chris Matthews still celebrate him with the same vigor and gushing leg-spasms? Seems fair.

Aww, well…all these "firsts". First this, first that…

Or we could be a community that doesn't care about that kind of stuff and has moved on. No?

gaby June 10, 2009 at 9:08 am

I did a research on BenjamIn Nathan Cardozo and he was NOT HISPANIC!!!!!

Epicurius June 21, 2009 at 6:26 pm

Cardozo's claim to Portuguese ancestry has never been confirmed by genealogists. It was a family legend that this is where one line of ancestors had originated, some ten generations before Cardozo.

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