Will George W. Bush appoint the first Hispanic to the Supreme Court? The conventional wisdom is that he will if a vacancy occurs during his presidency. But in fact, President Hoover may have beaten Bush to the punch in 1932 with the appointment of Benjamin Nathan Cardozo to succeed Oliver Wendell Holmes.
Whether the nation has already had its first Hispanic justice depends on the answer to a seemingly simple question: Who's Hispanic?
Two Hispanic-oriented Web sites-HispanicOn line.com and americanos-bostonianos.org-count Cardozo and list him as the first Hispanic justice. Yet the Hispanic National Bar Association is urging Bush to appoint the first Hispanic justice. And The Washington Post, Legal Times, Chicago Sun-Times, National Review, and many other publications have declared that Bush might well do just that. The short list of likely Bush Supreme Court nominees almost invariably includes White House counsel Alberto R. Gonzales and federal appeals court nominee Miguel Estrada, partly because of their Hispanic heritage.
Whether Cardozo, who died in 1938, was Hispanic depends on whether the term is defined to include Americans of Portuguese ancestry. "Hispanic," it turns out, is an inherently ambiguous-and, these days, a highly political-word with no fixed cultural or ethnic moorings. The confusion over how to classify people of Portuguese descent helps shed light on the complex, ever-changing politics of ethnic identity and minority rights in the United States. Generally, government agencies, employers, and university admissions offices count as "Hispanic" anyone who identifies himself or herself as such, even if the person's surname is, say, McDonald or Kowalski.
As used in common parlance today, "Hispanic" is a leaky umbrella that covers a geographically sweeping range of ethnic groups-from Mexican-Americans such as Gonzales, to most people whose background is Central American, such as the Honduras-born Estrada, South American, Caribbean, or Spanish. Today's model of the umbrella frequently fails to cover anyone from the French- and Creole-speaking Caribbean island of Haiti, from Portugal (Spain's neighbor on the Iberian Peninsula), or from Portuguese-speaking Brazil.
Leaders of Hispanic organizations tend to be understandably leery of carefully defining "Hispanic" or its pseudo-synonym, "Latino," because they know that there is strength in numbers and that very loose, inclusive terminology pumps up their official proportion of the U.S. population. "I truly believe that the terms `Hispanic' or `Latino' have served to really kind of unify the community," says Larry Gonzalez of the National Association of Latino Elected and Appointed Officials.
Gonzalez adds that his organization doesn't ask candidates' nationality: "We try to be as inclusive as possible, and that's why we really don't ask.... When you meet these folks, you find out. Or they send you their press releases saying, `I'm the first Salvadoran or first Dominican.' But we want to be inclusive. We want to include them all under the heading of `Latino elected officials.' "
After its 2000 head count, the Census Bureau for the first time pegged "Hispanic/Latino" as the nation's largest minority group-35.3 million people strong. That news jolted both major political parties into focusing more intently on attracting Hispanic voters. Yet the Hispanic vote is anything but monolithic. To cite one well-known example: The primary concern of Mexican-Americans (easing immigration restrictions) is quite different from that of Cuban-Americans (toppling Fidel Castro).
Wooing Hispanic voters certainly wasn't Herbert Hoover's aim when he tapped Cardozo for the high court 70 years ago. "Hispanic" wasn't even a regular part of the American political lexicon. Webster's Collegiate Dictionary then narrowly defined the word as "of or pert[aining] to Spain and its language." Apparently, neither Hoover nor any of his predecessors saw appointing Cardozo to the Supreme Court as a way to score a historic "first" because of his background. In fact, several presidents intentionally passed over Cardozo, who was controversial because his appointment would add another Jew, another New Yorker, and another Democrat to the nation's top court. According to Harvard law professor Andrew Kaufman, one of Cardozo's biographers, Cardozo would have thought of himself as a Sephardic Jew of Portuguese descent and probably not as Hispanic.
But by 1970, when the Census Bureau reluctantly began to ask U.S. residents whether they were Hispanic, the term had evolved to include people of Portuguese extraction, at least in the view of Webster's. It defined "Hispanic" as "of or relating to the people, speech, or culture of Spain, Spain and Portugal, or Latin America." The Census Bureau added the "Hispanic" query at the last minute at the insistence of President Nixon, who astutely saw the large number of Mexican-Americans in his native California as an indicator that Hispanics were becoming an important voting bloc. Bureau officials strongly objected to Nixon's request because they didn't have time to determine whether the term "Hispanic" had any scientific basis and whether it was a designation that the targeted population would identify with.
Today, except at the Library of Congress and the Small Business Administration, the consensus tends to be that Portuguese-Americans are not Hispanic. "I personally do not classify Portuguese under the `Hispanic' or `Latino' label, and I would say the majority [of Portuguese-Americans] do not as well," says Jason Moreira, executive assistant
of the Portuguese American Leadership Council of the United States.
Webster's now defines "Hispanic" as "of, relating to, or being a person of Latin American descent living in the U.S.; especially one of Cuban, Mexican, or Puerto Rican origin." Any U.S. resident who wanted to could claim to be "Spanish/Hispanic/Latino" on the 2000 census form because the Census Bureau allows people to define themselves. People of Mexican, Puerto Rican, or Cuban descent had separate checkoff boxes so that their proportion of the Hispanic population could be determined. Anyone belonging to an "other" Hispanic group was asked to name it. Self-identified Hispanic people who listed themselves as Portuguese, Brazilian, or Haitian were then not tallied as "Hispanic," though the census form did not warn that they would not be.
The two Portuguese-Americans in the U.S. House, California Republican Richard Pombo and Pennsylvania Republican Patrick Toomey, do not belong to the Congressional Hispanic Caucus. Neither does Sen. Ben Nighthorse Campbell, R-Colo., a Native American who is part Portuguese. However, former Congressman Tony Coelho, a Democrat of Portuguese heritage, did belong to that caucus. Dennis Cardoza, who defeated California Rep. Gary Condit in the Democratic primary, is Portuguese and doesn't consider himself Hispanic. But Cordoza has two adopted Hispanic children, and he intends to join the Hispanic Caucus, if elected. (The House's Portuguese-American Caucus is largely composed of non-Portuguese lawmakers who represent large numbers of Portuguese-Americans.)
Drawing Different Lines
The Library of Congress employs one of the most expansive definitions of "Hispanic": "The Hispanic Division Reading Room serves as the primary access point for research relating to those parts of the world encompassing the geographical areas of the Caribbean, Latin America, and Iberia; the indigenous cultures of those areas and peoples throughout the world historically influenced by Luso-Hispanic heritage, including Latinos in the U.S., and peoples of Portuguese or Spanish heritage in Africa, Asia, and Oceania."
The reading room was founded in 1936, thanks to the largesse of philanthropist Archer M. Huntington, who was primarily interested in the study of Spain and Portugal. According to a reading-room official who asked to remain anonymous, "The idea of Hispanic studies is Spain, Portugal, and Latin America in the scholarly world. Now, all of this antedates our political concept of Hispanics in the U.S.
"The reason we don't include Portugal as we should-it should be the Luso-Hispanic Division-is because we are told that the American public would not know what `Luso' is," she added. "In every great research library in the United States, Hispanic studies is the totality of the Iberian Peninsula, Latin America, and the Caribbean."
Questions about the library's definition of "Hispanic" come up "all the time," she says, from researchers of Portuguese descent. "The Spaniards have never asked, `Why are we part of Latin America?' But the Portuguese have come and said, `Why aren't we part of the European Division? And I say to them, `If you were part of the European Division, you would be like Slovenia. And if you're part of the Hispanic Division, you are an important country because of our big patron, Archer Huntington.... And the European Division covers, guess what-Russia, Germany. You know, the big boys.' "
Refugio Rochin, director of the Smithsonian Center for Latino Initiatives, embraces an even broader cultural definition of "Hispanic." To him, the Hispanic world stretches as far as the Philippines and Morocco, though neither country is Spanish-speaking. "There is a strong Middle Eastern influence on Hispanics throughout history. A lot of our culture, our systems of design, architecture, and mathematics derive from Moroccan influence on Spain," he explains.
Yet not everyone wants to be covered by "Hispanic." Brazilians want nothing to do with that label, regardless of how the term is defined, according to Jose M. Neistein, executive director of the Brazilian-American Cultural Institute. "We don't feel discriminated against; we only feel uncomfortable when people say we're Hispanic," he says.
In contrast, many Haitians want to be considered Hispanic or Latino-as scholars tend to agree they should be-but often get left out. In 1804, Haiti became the first colony in Latin America to win its independence. And one of Simon Bolivar's key allies in the fight to free the region from Spain's grip was Alexandre Petion, a founding father of the Republic of Haiti. Yet because Haitians speak Creole or French rather than Spanish and because they are black, they are often thought of as fundamentally different from "Hispanics"-even though the Census Bureau conscientiously reminds everyone that Hispanics may belong to any race. In the 1990s, members of the congressional black and Hispanic caucuses spoke out in favor of granting political asylum to Haitian refugees. Nevertheless, Haitians continue to be a people caught between two identities and have suffered politically as a result.
Jean-Robert Lafortune, chairman of the Haitian-American Grassroots Coalition, says that Miami's Cuban-American community is extremely supportive of Haitians but that Haitian-Americans need to forge closer ties to Hispanic organizations outside Miami. "We need that linkage between Haitians and Latino groups around the nation. Because that linkage is missing, we're having so much difficulty advocating for our community," he said.
Non-Hispanic political leaders attempting to address Hispanic needs often overlook Haitians. For example, in late March, Reps. Tom Davis, R-Va., and Howard L. Berman, D-Calif., introduced legislation to grant amnesty to thousands of Guatemalans, Salvadorans, and Hondurans if they could prove they had lived in this country since 1995. The measure does not include Haitians.
Likewise, Spanish-speaking George W. Bush has aggressively courted the Hispanic vote with knowing nods to the parochial interests of key segments of that population-with the notable exception of Haitians. As president, Bush has forged a strong relationship with Mexican President Vicente Fox and, even since September 11, has signaled a desire to ease immigration restrictions on Mexicans. The Bush administration has also promised to end the Navy's much-criticized weapons testing on the Puerto Rican island of Vieques. And just last month, the president forcefully reaffirmed the longtime trade embargo on Communist Cuba.
Yet since December, the Bush administration has locked up Haitians-and only Haitians-seeking political asylum. People of other nationalities are released to relatives or other U.S. citizens while their asylum cases are pending. (With the notable exception of Elian Gonz--lez, whom the Clinton administration sent home to his father, Cuban refugees are automatically allowed to stay in this country if they make it to U.S. shores.)
Preferential treatment for Cuban immigrants is nothing new. During the Cold War, Cuban and Nicaraguan refugees fleeing Communist regimes received much warmer welcomes than did the Guatemalan and Salvadoran refugees fleeing right-wing dictatorships.
A Continuing Evolution
No mere esoteric debating point, the question of how "Hispanic" gets defined-if it gets defined at all-by a particular administration, agency, court, or university can have far-ranging, real-world consequences on issues from immigration to affirmative action. On May 14, the 6th Circuit Court of Appeals ruled, 5-4, that it is constitutional for the University of Michigan's law school to give special consideration to black and Hispanic applicants. How does the university figure out who's Hispanic? Admissions officers simply look at whether the applicant checked "Hispanic/Latino" on the admissions form.
But elsewhere, lawsuits have already begun to target affirmative-action programs that use definitions of "Hispanic" so loose that they include nationalities with no history of being discriminated against. For example, after Congress instructed the Small Business Administration to make "Hispanics" eligible for 8(a) loans, the agency decided to include Portuguese-Americans. According to University of Maryland (Baltimore County) political scientist George La Noue, that decision has created legal problems. "The specific terms of what countries should be included were really made by the Small Business Administration," he said. "They were made at a very low level of the bureaucracy by people who are no longer there. And, frankly, people can't remember why they were made. But Portuguese got included."
Last July, the 7th Circuit Court of Appeals struck down a Cook County, Ill., ordinance requiring-in a 1988 attempt to make amends for past discrimination-that the county award 30 percent of the value of each county government construction project to enterprises owned by women or minorities. In Builders Association of Greater Chicago v. County of Cook, Richard Posner, writing for a unanimous three-judge panel, excoriated the county's "laundry list of favored minorities." Posner declared, "Persons whose ancestors came to the United States from Spain and Portugal ... have never been subject to any discrimination by Cook County." The judge added, "The concern with discrimination on the basis of Hispanic ethnicity is limited to discrimination against people of South or Central American origin, who often are racially distinct from persons of direct European origin because their ancestors include blacks or Indians or both."
The Posner decision appears to be in line with a 1989 Supreme Court ruling in which the justices declared that an affirmative-action remedy for past discrimination must be tailored to benefit only those sorts of people-blacks, for example-who actually had suffered the discrimination.
Although certain nationalities, such as Salvadorans and Guatemalans, are counted as "Hispanic" under almost everyone's definition, that doesn't translate into those groups' wielding much influence inside the Mexican-American-dominated Hispanic community or in society at large. "We can't get away from the fact that two-thirds of the [Hispanic] population are Mexican," says NALEO's Gonzalez. According to the 2000 census, 59 percent of U.S. Hispanics are Mexican, 10 percent are Puerto Rican, and 4 percent are Cuban. As a result, "Hispanic clout" very often means Mexican-American clout. Of the 19 Hispanics in the House (not counting two nonvoting delegates), 13 are Mexican-American, three are Puerto Rican, and three are Cuban.
Estevan Flores, executive director of the Latino/a Research & Policy Center at the University of Colorado (Denver), predicts that Hispanics of Central or South American origin will have more of a voice once they've been in this country longer. "Usually, probably the third generation gets to really get integrated into the political system and recognized for contributions and for paying their dues.... There are those of us [Mexican-Americans] in the Southwest who can trace their families back six, seven, 10 generations."
Identity politics is continuing to evolve. A sizable number of Mexican-Americans aren't interested in deciding who's "Hispanic" or, for that matter, who's "Latino." Instead, they want to use terminology that honors their American Indian tribal past, not European conquistadors. Explains Ruben Mendoza, a professor of social and behavioral sciences at California State University (Monterey Bay) and former president of the Association of Latina and Latino Anthropologists: The term "Hispanic" is "associated with the conquest culture of Spain. And that's part of the ideology behind the rhetoric for having it thrown out as a symbol for who we are as a people."
Gregg Sangillo is National Journal's fact checker. His surname is often assumed to be Hispanic but is, in fact, Italian.