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. (UPDATE: Justin Miller points out: "Brazilians mostly speak Portuguese (the country was Portugal's main South American colony) and it's easily the most-populated country in South America. It would be hard then to neglect Brazilians' status as Latinos. If Brazilians are counted as Latinos, why not then those from Portugal itself? Language seems to be a central tenant of identifying Latino ethnicity and I think this simple case makes it pretty clear Cardozo was the first Latino justice.")

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, 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).