Posted by Eugene Volokh:
Justice Cardozo as "Hispanic" or "Latino":
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243361519
The discussion prompts me to reprise a couple of items I posted in the
very first month of this blog on the subject:
1. Note Justice Cardozo's Hispanic surname, a traditional way of
testing Hispanic status; actually, I think the name is Portuguese, but
if it's good enough for the U.S. government, it's good enough for me:
Title 49, section 26.5 of the Code of Federal Regulations (the
definition that's used in the contracting race preference programs
administered by the Department of Transportation) defines "Hispanic
Americans" as
persons of Mexican, Puerto Rican, Cuban, Dominican, Central or
South American, or other Spanish or Portuguese culture or origin,
regardless of race.
There's no doubt, to my knowledge, that Cardozo was indeed of Spanish
or Portuguese origin; in fact, a recent biography describes the
shaping experiences of Cardozo;s youth as including participation in a
leading Spanish-Portuguese cultural organization. True, his family
probably left the Iberian Peninsula over 350 years before his birth,
but that's true of many Hispanics as well. And he likely had no
American Indian blood, but that's true of many Hispanics, too.
At the same time, I can certainly understand both why many Hispanics
would be enthusiastic about having a Hispanic appointed to the Court,
and why they wouldn't count Cardozo as one of them: Ethnicity tends to
be defined in practice by felt cultural bonds, and not by Code of
Federal Regulations definitions.
2. My friend Tom Waldman asked whether Cardozo might not qualify as
Latino (as opposed to Ladino, I take it).
But that presupposes a definition of Latino that's different from
Hispanic, and that would exclude Cardozo; I don't think there really
is that settled a definition. I could find no such definition in the
Code of Federal Regulations. The closest I could find is a definition
of "Hispanic or Latino" in 45 CFR 1355 app. A, which likewise turns on
whether a person "is of Mexican, Puerto Rican, Cuban, Central or South
American origin, or a person of other Spanish cultural origin
regardless of race" -- this might exclude Cardozo because I suspect
he's of Portuguese cultural origin, but that would be a really funny
way of defining Latino. After all, the Portuguese might be seen as not
Hispanic, but surely they're just as Latino as the Spaniards.
My New Shorter Oxford does define Latino as "A Latin American
inhabitant of the United States," which would indeed exclude Cardozo
-- but would equally exclude all Americans of merely Spanish, as
opposed to Latin American, extraction. This might be a sensible
definition, but it's not the one in the Code of Federal Regulations.
Though, wait! What about Antonin Scalia, a Justice some of whose
ancestors might have actually come from Latium itself? Yes, I know,
[1]etymology doesn't equal meaning; but it's still fun to play with
this.
3. 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).
References
1. http://volokh.com/2002_05_19_volokh_archive.html#85107517
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