Judge Sonia Sotomayor’s confirmation to the United State Supreme Court is an uber-historic landmark that goes to the core of our nationhood.

   The United States of America is intentionally a nation-state designed for inclusion of its citizens. We are defined by it. It is so self-evident that new naturalized citizens, when they are sworn in, receive a booklet, The Citizen’s Almanac, that says a citizen has the right to express himself, to worship as he wishes, is entitled to a prompt and fair trial when accused, to keep and bear arms, to vote, to apply for federal employment, to run for elective office, and is free to pursue life, liberty and happiness.

   The Supreme Court safeguards these participations as they are codified in law and enshrined in the Constitution.

   Reality also tells us that the nation’s ideals were compromised from the beginning by permitting slavery and the Three-Fifths Compromise that counted slaves as parts and not wholes for determining the number of delegates to the House of Representatives.

   Legal and policy struggles about our populations have been highlighted like that ever since in the use of political power when it serves some and not others. Often, the Supreme Court, as the third branch of the federal government, balances between the literal and intended national purpose in a law.

   Take, for instance, in the 1954 Hernández v. Texas case when Latino lawyers Gustavo García, Carlos Cadena and John J. Herrera were the first Mexican Americans to plead before the Court.

   In that case, Pete Hernández claimed he had been unconstitutionally convicted in a murder case because he had not been tried by a jury of his peers. The state of Texas claimed that there was no discrimination because the state considered Mexican Americans white. The Latino lawyers argued that no Latino had ever served on a jury in Edna, Texas, where the act occurred, had ever had a Latino serve. Proof of social prejudice was evident in the courthouse restroom with its sign prohibiting Mexican Americans from using the “white” facility.

   Cadena, before the nine justices, described this Mexican-American population, as there was little national consciousness about it. “What is that?” one Justice asked, instead of saying, “Who are they?”

   “They call them greasers down there, don’t they?” inquired Justice Felix Frankfurter.

   Gus García took up the social and historical lesson but soon the red light that signals lawyers to stop talking lit up. But Chief Justice Warren, in an unprecedented break with protocol, told García to continue. And he did, for 16 more minutes.

   García, Cadena and Hernández argued that, although Mexican Americans were “white,” they were a “class apart.” Excluding them from juries was a discriminatory act violating the 14th Amendment.

   In May of that year, the Court brought down a unanimous decision in favor of Hernández and ordered a new trial for him.

   Often excluded in the telling of this story about the decision is the role that biography and empathy might have played. Chief Justice Warren was the former Republican governor of California, with a large Mexican American population, and he had been so popular that, in that time of cross-filing for state office that he won nomination by voters of both parties in 1946. It is also worth remembering, regardless what he must have sounded like, Justice Frankfurter was foreign-born and from a poor Jewish family.

   Historically, the Hispanic saga for full inclusion and participation began in 1822 when Joseph Marion Hernández, representing the Florida territory, went to Congress. Today, 30 Hispanics serve in Congress. Two have sought their party’s’ nomination for the presidency, two have been short-listed for vice-presidential selection and many have served in Cabinet posts. Until now, only the judiciary branch of government has lacked Hispanic inclusion in high office.

   All that changed with the Senate’s 68 to 31 vote on Aug. 6 for the confirmation of Sonia Sotomayor. Senator Edward Kennedy of Massachusetts, who is convalescing following brain surgery, expressed his support but was not present to vote. The affirmation now patches the interlink between the three branches of our government and the participation of the Hispanic experience in it.

   Today this nation is more inclusive people and their experiences than it was yesterday.

   [José de la Isla’s latest book is now available free in digital version at www.DayNightLifeDeathHope.com. He writes a weekly commentary for Hispanic Link News Service and is author of The Rise of Hispanic Political Power (2003). E-mail him at [email protected].]

    @2009