[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
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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

                                 
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