The New York Times extensively cited the commentary of conservative legal pundit Ed Whelan in an article discussing the upcoming Supreme Court vacancy without providing any information about Whelan’s disreputable history.
Whelan was the progenitor of a conspiracy theory that sought to defend Justice Brett Kavanaugh against Christine Blasey Ford’s report of sexual assault during his confirmation hearings, claiming Ford must have mistaken another person for Kavanaugh.
Whelan, a former clerk for the late Justice Antonin Scalia who heads a conservative nonprofit and contributes articles to right-wing publication National Review, also has a history of attacking the qualifications of judicial nominees who are women of color by insinuating they lack the intellect to carry out the positions.
None of this background information was included by The New York Times in its citation of Whelan in a January 26 article that focused on President Joe Biden’s pledge to nominate a Black woman to the Supreme Court. The Times article quoted Leslie D. Davis, the CEO of the National Association of Minority and Women Owned Law Firms, who told the paper that within the federal judiciary, “Black women’s voices have not been appreciated,” and that “ their perspectives have not been valued, and their voices have not been heard.”
Apparently, in need of a counterpoint, the Times then quoted from a piece Whelan previously published at National Review:
But conservatives like the National Review legal commentator Ed Whelan have pointed out that the number of Black women Mr. Biden has nominated is strikingly disproportionate to the available pool of Black women with law degrees.
According to a 2021 profile of the legal profession by the American Bar Association, just 4.7 percent of American lawyers are Black and 37 percent of lawyers are female. The report did not break out Black women in particular, but the implication is that roughly 2 percent of American lawyers are both Black and female.
“By Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success,” Mr. Whelan wrote this month, calling Mr. Biden’s record on appointing Black women “extraordinary” while also taking “some delight in noting” that liberal white males, with just two appellate nomination slots so far, were “the big losers.”
Whelan’s argument – adopted by the Times article (He “pointed out that the number of Black women Mr. Biden has nominated is strikingly disproportionate to the available pool of Black women with law degrees”) – is ignorant, at best. Institutional racism heavily influences who gets to go to law school, and, as Davis referenced, Black women have historically been shut out of the federal judiciary.
In credulously quoting Whelan, the Times could have at least provided some background about him, beyond describing him as a conservative legal commentator.
As scrutiny mounted during Kavanaugh’s nomination hearing, Whelan put out a series of tweets that posited it was likely Ford had been assaulted not by Kavanaugh, but by one of his classmates who “looked a lot like Kavanaugh.” Whelan went as far as to name the purported lookalike and share his picture on social media. His conspiracy theory was then adopted by many prominent segments of conservative media. Whelan later apologized for his “appalling and inexcusable mistake of judgment” in making the claim. (Notably, Sen. Susan Collins (R-ME) still later cited a similar mistaken identity theory in a speech to justify her vote in favor of Kavanaugh that secured his confirmation.)
Whelan’s baseless claims in support of judicial nominees he supports are echoed by his baseless claims about nominees he does not favor. In particular, he has attacked some women of color who are judicial nominees with insinuations about their intellectual rigor. One of his most frequent targets, Judge Ketanji Brown Jackson, is reported to be one of the most likely nominees for the Supreme Court vacancy.
As Media Matters senior fellow Matt Gertz noted in 2016 – after a vacancy was created following the death of Scalia – Whelan sought to portray Brown Jackson as unintelligent.
Five years later, Whelan is continuing this line of attack:
Whelan also attacked Sotomayor’s intelligence. During her 2009 confirmation hearing, Whelan purported to parse her speech to argue that Sotomayor often uses malapropisms, while asking, “Does the fact that she is a Latina immunize her from attention to that sort of (admittedly not uncommon) foible?”