Legal Commentary

Hey all. Great to be back at Prawfs again. I was going to post something less legal, and probably more interesting, for introductory purposes, but yesterday this item in the NY Times caught my eye. I?m certainly not the first person in the blogosphere to mention this, but the issue is: if Sonia Sotomayor were confirmed, would she really be the first Hispanic justice? The possible problem is that there was already a jurist of Portuguese descent on the Court that you may have heard of: Justice Benjamin Cardozo.

The question this turns on, then, is whether Portuguese people are Hispanic. I normally don?t get embroiled in issues like this, and I don?t think there are right or wrong answers to questions that depend on whether individuals relate to or belong in awkwardly constructed ethno-racial categories, but this one is a wee bit different for me.  As it happens, I'm Portuguese (specifically, half: my father is from the Azores, a Portuguese archipelago in the Atlantic Ocean), so I?ve thought about the meaning of "Hispanic" and whether Portuguese people fit into it way more than I would have otherwise.

The short (and easy) answer from my perspective as a (mildly) interested party is this: one could plausibly shoehorn Cardozo into a broad, formal definition of ?Hispanic?, but that?s not really the issue. What people find significant about Sotomayor?s ethnic status?what they?re really excited about or resistant to when they invoke the phrase ?first Hispanic Justice??is not a technical question about ancestry and temporal primacy, but is rather about the social meaning of her elevation to the Court. I say a few more words about the Portuguese/Hispanic terminological kerfuffle, and the reason why it?s ultimately beside the point below the fold.

First, as the NYT article pointed out, the issue is a bit contested. There are some formal sources that make it plausible to squeeze Portuguese people within the outer bounds of the term ?Hispanic?. There?s a CFR section that includes people of Portuguese descent as Hispanic for the purposes of Department of Transportation regulations, and the OED apparently defines the term as encompassing those of Spanish or Portuguese descent. Portuguese Congressmen are members of the Congressional Hispanic Caucus, and Nelly Furtado (of Azorean descent, like DF) regularly performs at the Latin Grammys.

So. If someone who is Portuguese claimed to be Hispanic, I wouldn?t think the assertion false or dishonest. It?s a borderline case, but the meaning of Hispanic is contested and unclear enough that it?s hard to know where its outer bounds begin and end. Of course, there are many ethnic-category conundrums one can imagine along these lines. Should we consider a blue-eyed, blond-haired third-generation Argentinian who is a descendant of German immigrants Hispanic?  Consider a white U.S. citizen who recently immigrated from Zimbabwe, and whose family had lived in that country for a century? Would such a person legitimately be ?African-American"?  These are, in my view, questions of self-identification that have to be left to individuals.

For my own purposes, though, I?ve never self-identified as Hispanic when asked to check an ethnic-category box, for a couple of reasons. The first reason is formal and simple: the root of the word ?Hispanic? is ?Spain?, and if there?s one thing Portuguese people are adamant about not being (sometimes to the point of neurosis), it?s Spanish. So I think the definition doesn't apply, on a plain-meaning theory.  The second reason is that somehow it feels wrong for me to check that box. This is a tricky instinct to explain, but I think it?s that my family assimilated really quickly and thoroughly (I know less than twenty Portuguese words), and I feel and am treated more or less as a plain old, mainstream white American. This is a hard issue, and others might make a different decision for perfectly legit reasons, but that?s how I approach it.

And this leads me to the ultimate point: thatthe whole ethnic categorization issue regarding Cardozo and Sotomayor, and ?Portuguese? and ?Hispanic?, is really beside the point. However exasperating the public's obsession with her ethnicity may be, there's clearly something resonant about Sotomayor's possible status as the first Hispanic Justice.  I think there are a couple reasons that this issue seems significant to many people. The first is that her elevation to the Court would mean that a large (and, obviously, ill-defined) ethnic group would have representation in the federal judiciary in a distinctly visible way that they have never had before (because even if Cardozo counts as Hispanic, he certainly didn?t self-identify as such and wasn?t perceived that way, not least because the term ?Hispanic? wasn?t in common usage during his judicial tenure). The second is that her elevation to the Court would be taken by many as an indication that the highest echelons of American government are trending in a direction of more inclusivity (cf. Obama?s election).

Whether having Sotomayor on the Court would actually be a bellwether for inclusivity or have any other kind of broad social significance is, of course, an empirical question that will take time to answer. And even if I?m right about the social meaning of her nomination, those points are unrelated to the question whether she merits confirmation. The point of this post is simply that references to Sotomayor potentially being the first Hispanic Justice aren?t really about formal questions of ethnicity and primacy (Jackie Robinson wasn?t actually the first Black major leaguer, but that doesn?t detract from the social significance of his accomplishments), so the whole Cardozo/Portuguese issue is, I think, beside the point.