    [Senate Hearing 111-1044]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 111-1044

                                    [ERRATA]
    THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME
                           COURT OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY

                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                          JUNE 28-30, and JULY 1, 2010

                                   __________

                              Serial No. J-111-98

                                   __________

             Printed for the use of the Committee on the Judiciary

                      U.S. GOVERNMENT PRINTING OFFICE
    72-963err                    WASHINGTON : 2012
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
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                                    [ERRATA]

    Delete Elena Kagan, Nominee to be Solicitor General, Department
      of Justice Questionnaire, pages 379-424 (the Solicitor General
      questionnaire was inadvertently printed) and insert new
      Questionnaire.

    Delete the Responses of Elena Kagan, Nominee to be Solicitor
      General, to Questions submitted by Senators Leahy, Hatch,
      Grassley, Sessions, Cornyn and Coburn; pages 425-458 were
      inadvertently printed.

    Insert the Responses to Questions to Witness, Lilly Ledbetter,
      submitted by Senator Leahy.

                                C O N T E N T S

                                  ----------

                           STATEMENT OF THE NOMINEES

    Kagan, Elena, Nominee to be an Associate Justice of the U.S.
      Supreme Court..................................................
        Questionnaire................................................  1168

                             QUESTIONS AND ANSWERS

    Responses of Lilly Ledbetter, to Questions submitted by Senator
      Leahy..........................................................  1369

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                             Questions and Answers

                  Written Questions of Chairman Patrick Leahy

                          for Witness Lilly Ledbetter

      Hearing of Elena Kagan, Nominee to be Associate Justice of the U.S.
                                 Supreme Court

        Question:

        After you concluded your testimony before Judiciary Committee, Ed
    Whelan testified and made a crude allegation. Mr. Whelan declared that
    you ``had waited more than five years after [you] learned of the
    discrimination to file [your] EEOC charge.'' Another witness invited to
    testify by the Ranking Member, Mr. Robert Alt, testified that your case
    has been ``been singled out for special condemnation'' to tell the
    ``story of a conservative activist, pro corporatist Roberts Court'' but
    he cautioned that ``it's just a story, and a fictional one at that.''

        For the record, please respond to these charges, specifically, the
    allegation that you ``waited more than five years after'' having
    learned of the discrimination against you to file your suit and whether
    your story is ``a fictional one.''

        Response:

        Thank you for your letter giving me the chance to respond to some
    allegations that were made against me by two of the witnesses who
    testified after me at the hearings on Elena Kagan's nomination to the
    Supreme Court. I thought the hearings were supposed to be about
    Solicitor General Kagan's qualifications for the Court. If I'd known
    that Professor Alt and Mr. Wheelan were going to use the hearings to
    attack me personally, I would have stayed around so they could do it to
    my face. I appreciate the chance to set the record straight.

        Both gentlemen said that I conceded in my deposition that I knew
    about the violation of my legal rights five years before I complained
    to the EEOC. That's a very misleading statement. It is true, as I've
    testified in Congress before, that for some time I had suspected that I
    was getting paid less than the men. I knew, for example, that my pay
    was below the midpoint in the salary range. But in a part of the
    deposition that maybe the witnesses didn't read, I also explained that
    when I told my manager I thought I was getting paid less than my peers,
    he told me I was being misled by the men exaggerating their pay. The
    truth is, I didn't have any solid evidence, only suspicions. But that's
    no basis for bringing a claim of discrimination right away.

        Instead of running to the EEOC without any hard evidence, I did
    what I think most people would do (and what most employers would want
    their workers to do)--I asked my bosses what I could do to get my pay
    up. It was only when that didn't work, and when I finally got that
    anonymous note in my mailbox showing me exactly how enormous the
    difference in pay was, that I had enough evidence that I thought I was
    justified in going to EEOC.

        It's also worth pointing out that at the trial, Goodyear never
    asked me about when I first knew of the discrimination. Had they done
    that, I could have explained things more fully and let the jury decide.
    But Goodyear didn't ask about it because under its theory, it didn't
    matter. Under Goodyear's theory, even if I had filed my charge five
    years earlier--like Professor Alt and Mr. Whelan apparently think I
    should have--it still would have been about ten years too late.
    Goodyear argued that I was supposed to file the charge 180 days after
    each pay decision was made. The Supreme Court agreed with them, and
    these witnesses seem to think the Court got it right. So I don't know
    why they are talking about what I knew years and years after the
    deadline supposedly passed.

        Now Mr. Whelan says that the Supreme Court's decision isn't so bad
    because it left open the possibility that a ``discovery rule'' might
    apply to make their nonsensical rule a little more reasonable. But from
    what I understand, it is not at all clear that the Court would have
    recognized that kind of rule in the future. As you know, I'm not a
    lawyer. But I'm told that the question came up in another case,
    National Railroad Passenger Corporation v. Morgan. And in that case,
    Justices Kennedy and Scalia specifically refused to sign on to a part
    of an opinion written by Justice O'Connor that recognized a discovery
    rule for the Title VII. I also understand that in another case, TRW v.
    Andrews, Justice Scalia and Justice Thomas called the discovery rule
    ``a bad wine of recent vintage.'' So that's three of the five Justices
    in the majority in my case who don't seem anxious to apply a discovery
    rule in cases like mine.

        Finally, I'm not sure that this ``discovery rule'' would be much
    better anyway. As I understand it, the lower courts that have applied a
    discovery rule to Title VII claims say that the time starts running
    from when you first discover what the employer did--for example, laying
    someone off, denying a promotion, or in my case, denying a pay raise--
    not from the time you discover that the reason for the action was
    illegal discrimination. That's no help at all. I obviously knew right
    away when I was denied a raise. The problem is knowing that the
    decision is based on illegal discrimination. And figuring that out
    takes time. You can't just assume the first time you get a small raise,
    or are told what your starting salary is, that you're being
    discriminated against. But when you keep getting smaller raises, and
    figure out how exactly much less you are getting paid than others, the
    evidence starts to add up. That's what the Supreme Court didn't
    understand. And telling me that it's all right because someday the
    Court might adopt this useless discovery rule doesn't make it any
    better.

    Sincerely, Lilly Ledbetter