[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
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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
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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