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AMERICA’S FIRST HISPANIC JUSTICE: IT’S NOT WHO YOU THINK

by William Perry Pendley

July 1, 2009

President Obama’s nomination of Sonia Sotomayor—a judge on the United States Court of Appeals for the Second Circuit—for appointment to the Supreme Court of the United States, if confirmed would yield, brag interest groups and the mainstream media, America’s first Hispanic justice. Not so; that honor belongs to one of the Nation’s greatest jurists.

Benjamin Nathan Cardozo was born in New York City to Albert and Rebecca Cardozo on May 24, 1870, a descendant of Sephardic Jews of Spain and Portugal who came to the Colonies before the American Revolution. Many of his relatives were active New Yorkers: a cousin, for example, wrote the Statue of Liberty’s famous verse. His father was elected to the New York Supreme Court; however, a Tammany Hall scandal forced his resignation and return to private practice. Young Cardozo and his twin Emily were “home-schooled” by Horatio Alger, a popular author of tales of impoverished children who, through hard work, courage, and concern for others, led productive lives.

After Cardozo graduated with top honors from Columbia College in 1889, he entered Columbia Law School where he studied for both a master’s and a law degree. He received his master’s degree in 1890; meanwhile, Columbia Law School had increased the course of study for a law degree from two years to three. Cardozo, thinking two years was enough, prepared for the bar examination, which he passed in June 1891. Cardozo joined his brother and late father’s law firm and soon gained the respect of New York’s appellate court justices. Charles Evan Hughes, Jr., who became Chief Justice of the United States, called Cardozo “a walking encyclopedia of the law.” Columbia later presented Cardozo an honorary law degree.

In 1913, Cardozo, a Democrat, was elected to the New York Supreme Court, which was a trial not an appellate court; nonetheless, after only a month, he was assigned to help clear the docket of the New York Court of Appeals. In 1917, he was elected to a full term on the Court of Appeals and, in 1926, became its chief justice. With Cardozo at the helm, the New York Court of Appeals became the nation’s leading state court and Cardozo became renowned for his expertise in the common law and for “his elegant and persuasive writing.” At the same time, Cardozo gained acclaim as a legal philosopher and lecturer.

Little wonder that when, during the 1920s, vacancies opened up on the U.S. Supreme Court, Cardozo’s name was always at the top of the list of potential nominees. In 1932, after Justice Oliver Wendell Holmes, Jr., retired and in response to unprecedented national support for Cardozo’s appointment, President Hoover nominated him. Cardozo was confirmed by the Senate, without debate, in February 1932. Although he served less than six years, he wrote more than 100 opinions for the Court.

Cardozo made contributions in many areas of the law—he was the nation’s premier torts law theorist and his decisions paved the way for the Uniform Commercial Code, which governs most business activities today. His greatest contribution, however, was his approach to judging. As his biographer, Andrew L. Kaufman, points out, “Cardozo remains in the public memory as a standard of judicial excellence.” For Cardozo, the facts and established legal precedents governed most cases. In others, he often deferred to democratically elected legislatures because they reflected, in Cardozo’s words, the views of “right-minded men and women,” but not always, such as when personal liberty and property rights were at stake. Most importantly, Cardozo eschewed subjectivity (not to mention “empathy”) and embraced instead impartiality. In fact, he took pains to avoid injecting his personal views into his opinions; although he opposed the death penalty, he enforced it because it was the law.

As the Senate considers Sotomayor’s nomination, the question is not was Cardozo a Hispanic, but whether a Justice Sotomayor will be “a Cardozo” or “a wise Latina woman”?