Revisiting the Issue of whether Justice Cardozo was the First Hispanic Justice


Justice Sonia Sotomayor is the first Puerto Rican Justice to serve on the Supreme Court, the first Latino. She is often also described as the first Hispanic Justice. Some, however, have maintained that Benjamin Cardozo, as a Sephardic Jew, was the first Hispanic Justice.

Federal and state law typically defines "Hispanic" as being of "Spanish origin or culture." There are at least two federal administrative decisions discussing whether Sephardic origins make someone "Hispanic." In Rothschild-Lynn Legal & Fin. Servs., No. 499 MSBE-94-10-13-46, 1995 WL 542398, an administrative law judge found that it does, regardless of whether the individual in question speaks Spanish, has a Spanish surname, or otherwise has other indicia of Hispanicness. In re Storer Broadcasting, 87 FCC2d 190 (1981), finds the FCC accepting Sephardic heritage as evidence of Hispanic status, but it was cumulative of much other evidence of such status in that case.

Given that, one might conclude that Benjamin Cardozo was Hispanic, especially because that he and his family belonged to New York's Spanish and Portuguese synagogue, showing that he maintained a Sephardic identity.

The problem is that according to a Cardozo expert I consulted, the Cardozos insisted that the Cardozo line had never lived in Spain. Most Portuguese Jews wound up there after fleeing persecution in Spain in the 14th and 15th centuries, but the Cardozos claimed this did not apply to them.

On the other hand, Portuguese Jews who were members of the Sephardic communities in Europe and North America almost certainly over several hundred years married descendants of Spanish Sephardim. So while Cardozo's paternal line may not have had Spanish origins, surely he had Spanish Jewish ancestors, and thus was of partial Spanish origin.

Nevertheless, I conclude that under current laws and cultural norms, Cardozo was not Hispanic. Because his family insisted that they were Portuguese and not Spanish Jews, Cardozo apparently did not identify himself as being of Spanish origin, even if he did have Spanish maternal ancestry. And if Cardozo did not self-identify as being of Spanish origin, he almost certainly would not identify himself as Hispanic if he were alive today (only 2% of Portuguese-Americans consider themselves "Hispanic," though some affirmative action programs, including the federal Department of Transportation, do include people of Portuguese origin in their definition of Hispanic). And without self-identification as a Hispanic, he would not be considered Hispanic based on partial Spanish descent.

Verdict: Sonia Sotomayor is the first Hispanic Justice.

NEXT: Today in Supreme Court History: April 9, 1923

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  1. Sonia Sotomayor, our first Wise Latinx.

    1. Did the Cardozo family family speak Ladino at home? That is Spanish and Hebrew, the way Yiddish is German and Hebrew.

      1. The bigger problem is the math error by the Census, having whites becoming a minority soon. That will never happen. The Cardozos and most Hispanics are white, more conservative than WASPS in their culture and in their politics.

        1. Jokes, how do they work?

          1. Oops, meant for Don Nico

          2. "Jokes, how do they work?"

            Verizon is shutting down Yahoo Answers.

      2. If they claimed to have never lived in Spain, how would they know Ladino?

    2. "first Wise Latinx."
      Here is another stupidity. While Latinix (made up by the woke to avoidLatino and Latina) ) may properly apply to the Latina Sotomayor, the stupid also use Latinix inappropriately for men, when "-ix" is a Latinate feminine suffix.

      1. "Here is another stupidity. While Latinix (made up by the woke to avoidLatino and Latina) ) may properly apply to the Latina Sotomayor, the stupid also use Latinix inappropriately for men, when “-ix” is a Latinate feminine suffix."

        Is the stupidity you're referring to the fact that you can't tell the difference between Latinx and Latinix?
        Or is the stupidity the fact that you're complaining that people are using "Latinix" to refer to men, when literally no-one has been doing this? Either way, you've fallen victim to the first rule of Internet pedantry...before you rush to correct someone online, first make sure you ARE actually more correct than they are.

  2. Thank God this got cleared up.

    I can sleep easy again.

  3. The Portuguese are more Irish than Spanish, except to the dumbass lawyers at the Federal government.

    1. The Portuguese are more Portuguese than Irish, to most people.

      1. The Portuguese were Vikings. You are a lawyer, and nothing more need be said.

        1. Your parents worked hard and sacrificed greatly to raise a fine, intelligent, moral young man. Then you attended 1L, and you became a total lawyer d-----s. See if you can fill in the blanks. Try hard.

          1. Not a lawyer. Try to fill in the blanks. Try hard.

        2. ". You are a lawyer, and nothing more need be said."

          I'm still an IT administrator, which is something different from lawyer, idiot.

  4. To whom would this seem important?

    1. Anyone who comments on this post, apparently.

      1. LOL. "First Hispanic Justice" gets 11K hits on google, so apparently someone cares.

        1. Topics people care about get millions of Google results, not thousands.

          1. "People," which would include that 11k, logically speaking. And some people often are a lot about niche things. What's with the popularity contest anyway?

            1. "What’s with the popularity contest anyway?"

              I'm not the one who suggested this was important to anyone.

          2. Many of the hits are major news organizations covering the swearing-in of the first Hispanic justice, so I guess those news organizations think their audiences care.

            And it's a NYT crossword puzzle clue, so people doing the crossword care.

    2. I think Bernstein is trying to make a point, in what I admit is a somewhat subtle and clever way.

  5. I had never thought much about the distinction between Spanish and Portuguese as regards "Hispanic". I would have said that Brazilians are as Hispanic as Bolivians, for instance. I'd bet that most Americans would too; anyone from Central or South American would be Hispanic, although maybe not descendants of the Nazis who fled Germany after WW II or other such oddities.

    Professor Bernstein, is that true generally, that Hispanic does not apply to Brazilians?

    1. Generally speaking, Hispanic does not apply to Brazilians, because they are not of *Spanish* origin or culture, though the DOT includes them along with Portuguese. Some definitions of *Latino,* on the other hand, include Brazilians (and Haitians, Belizeans, and other southern hemisphere Americans who are not of Spanish origin or culture--but Brazilian is probably most common).

      1. You mean like that great Latinx beauty Giselle Bundchen?

        Fun Fact: More Italians immigrated to Brazil than did to the United States.

        1. Indeed that is true. The Italian heritage is still strong in Brazil.

          However this pot demonstrates the complete stupidity of such hair-splitting discussions analogous to arguments about how many angels can dance on the head of a pin.

          I don't care about whether Sotomayor is a Latina or a New Yorker. I just care that she and Thomas are the ideological bookends of SCOTUS

          1. It's very strong in Argentina also.

            1. bernard,
              There is a funny saying that the
              Argentinians are Italians who speak Spanish, but think that they are English

  6. Does the one drop rule apply to Hispanics?

    1. The FCC, I believe, said that it would credit someone for being Hispanic if they were one-quarter, but not one-eighth. That's the only official pronouncement I know of regarding how much Hispanic ancestry you need to potentially qualify as Hispanic.

      1. Thanks for a serious answer to a trolling question.

        Again, it's nice to see engagement in the comments by the OP. Much respect for that.

  7. New York State Executive Law 310, which governs various affirmative action programs, defines "minority group members" to include "Hispanic/Latino persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American of either Indian or Hispanic origin, regardless of race." So if you come from Spain or Portugal, you do not qualify. I find the statute somewhat ambiguous as to a Brazilian whose ancestors were Portuguese. Did Cardozo's ancestors pass through South America, or did they come directly from Portugal?

    1. Why would Mexico qualify? They were most recently a possession of France, not Spain.

      1. When was that?

        1. Shortly before the Germans bombed Pearl Harbor

          1. Was that before or after Ohio gained independence from Canadia?

        2. While the US was busy having a Civil War.

      2. Until the mid-19th century Mexico was a possession of the Austro-Hungarian Empire

  8. In general Sephardim are Jews whose ancestors lived under Islam during the Middle Ages, while Ashkenazim are Jews whose ancestors lived under Christianity. Islam conquered the Mediterranean from Spain to Persia. So Sephardic Jews are no more necessarily Spanish than Ashkenazic Jews are Germans.

    Various terms have been used to describe various subgroups of each, and there are groups (e.g. Ethiopians) wholly outside both.

    Cardozo’s claim to Hispanic origin is much greater than a typical Sephardic Jew because his family traces to the Iberian peninsula, and the countries now known as Spain and Portugal didn’t exist during the Middle Ages and were sometimes united into a single country. But being “Sephardic” doesn’t by itself carry any implication that ones family originates from Spain. Spain was a great center of Jewish civilization during the Middle Ages. But the Muslim Caliphates had other centers as well.

    1. Because Justice Cadozo’s family originated in the Iberian peninsula and he maintained direct ties to Iberian cultural organizations, it seems to me his claim is rather strong. The Spanish/Portugese distinction seems a rather weak argument. It is not one that most ordinary would make when they think of the term “Hispanic.”

      If the Basques won independence from Spain, would you argue that Basque descendents aren’t Hispanic? aren’t really Spanish. The Iberian penninsula contained multiple languages and cultures, which dodn’t perfectly correspond to current political entities. Just as Sephardic Jews recognize multiple subgroups, so do Iberians and their descendents. But these distinctions aren’t so important from the poijtcof view of outsiders.

      1. Spain itself may well be on the verge of shattering back into smaller countries, if the Catalonians get their wish.

      2. Another excellent comment that show the stupidity to today's "Hispanic" preferences in America.
        My Grandfather immigrated here from Argentina. Do I "count." It is all BS. Should the son of a wealthy Italian banker who lived for a while in Peru count? He made it to be director of a US national laboratory before Hispanic affirmative action.
        All this is divisive silliness.

        1. Then there are the Islenos in Louisiana know as canarios elsewhere, notably in the US, San Antonio TX. They arrived in Spanish colonial times during the 18th century from the Canary Islands, at the time under Spanish rule.

          Generally with Spanish surnames in Louisiana they can be considered Hispanic, but I don't think anyone looks too hard. One of the most virulent racist public figures in the US Leander Perez, an Isleno.

          1. I am from Louisiana and our family are a mix of French and Spanish, like arguably thousands of others here, particular in the Baton Rouge/New Orleans corridor. I DO claim Hispanic ancestry on every government form, and I speak (learned) Spanish. We are just as Hispanic as anyone else, and certainly as "Latin-American" as anyone else, a characterization first used by the French, anyhow. Louisiana culture is very Latin in many aspects, including the perspective of time, attachment to cultural antecedents, food and general way of life. Latin Americans who visit Louisiana are often struck by this fact, how similar it is, culturally, to South American and/or Iberian, south French coastal culture. I know of other Creole/Criollos (white) from Louisiana who also claim Hispanic identity, even if their parents did not.

    2. I don't think Cardozo ever made any such claim.

  9. A neat article point out the Byzantine mess of exclusions in the name of inclusion that is affirmative action.

    1. There is no Affirmative Action requirement for judicial appointments, but other than that, yeah, spot on.

  10. So my wife's Ashkenazi Cousins emigrated to Vera Cruz in Mexico in the 30's and now four generations later, mostly still live in the Mexico City area. Are they Mexican, Hispanic, or something else. (For the record, when asked, members of generation two, born to European parents, say in Mexico they care called European. For generation four, their grandchildren, say they are Mexican to the extent they even deal with the question
    And my nephew, born of an American-Jewish father and Panamanian mother raised in Texas, identifies as Hispanic.
    At some point, aside from how the law chooses to hand out bonuses based on ethnicity, the whole process just gets silly. Which, I suspect, is Professor Bernstein's point.

  11. Who cares....

    1. Holy Crap! Mr. The Dane chimes in to support my position! The cold snap from Hell freezing over didn't just stretch to Texas!

  12. Did Hoover or FDR question his loyalty to this country when he ruled in a way they didn't like?

    1. Before there were hyphenated Americans there were just Americans. And there was not as much of a need to question the loyalty of people because hating the country which you live and serve was not a feature in our system back then (or not as much).

      1. What "need"? Curiel, born in Indiana, had a life of dedicated service. There was far more reason to question Trump's loyalty to this country than Curiel's.

        1. Not just "was". "is".

  13. As is so often the case, group identity is determined by the people who don't like you. For most purposes, Iberian=European=White. Nobody hates Don Diego de la Vega, except for the evil alcalde. But if your roots are more firmly in Latin America rather than Europe, you're "Hispanic."

    1. I have long contended that a large part of the prejudice against "Hispanics" is racial and class based. There is a long history of European appearing Latins/Spanish doing very well in the US.

      Think of all the entertainers past and present who are/were European in Appearance and regarded as safely exotic.

  14. If people who have ancestors from Portugal are not considered Hispanic, what about people from Brazil? Shouldn't they also be excluded from being classified as Hispanic? After all, they don't even speak Spanish. Just another example of the absurdity of the Left's whole racial/ethnic origins fixation.

    1. "what about people from Brazil? Shouldn’t they also be excluded from being classified as Hispanic? After all, they don’t even speak Spanish. Just another example of the absurdity of the Left’s whole racial/ethnic origins fixation."

      ... says the guy fixated on racial/ethnic origins.

  15. to quote Larry David...."who cares"

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