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Sotomayor or Cardozo: Supreme Court’s first Hispanic?

by Brad A. Greenberg

May 26, 2009 | 9:33 pm

There have been two major bits of news in the legal world today. One is straightforward but far from over: the California Supreme Court upheld Proposition 8. But the other, that Judge Sonia Sotomayor, President Obama’s first pick for the U.S. Supreme Court will be the first Latino to join the nation’s highest court, is less clear. All that depends on just how we should classify Justice Benjamin Nathan Cardozo, a Sephardic Jew appointed to the Supreme Court by President Hoover.

Cardozo’s direct lineage was from the Iberian Peninsula, and though AP style is not to identify Spaniards and the Portuguese as Latinos, Cardozo was Hispanic.

Eugene Volokh, the UCLA law professor and prolific blogger who clerked for Justice Sandra Day O’Connor, sifts the wheat from the chaff with an on-the-one-hand, on-the-other-hand argument. Volokh concludes:

So the bottom line: There’s no doubt that many Hispanics might see Judge Sotomayor as one of them in a way that they don’t see Justice Cardozo as one of them. There’s nothing “incorrect” about that; it’s a matter of felt shared identity, which is defined by actual practices and not by scientific or often even legal definitions. But if one does look at legal attempts to try to capture Hispanic identity as a legal category, Justice Cardozo might well have qualified (which may say more about the weakness of such legal attempts than about anything else).

Indeed, Jewish identity is a complicated animal. So too is Latino identity. Put them together and, well, you’re going to have a tough time reaching consensus.

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