[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 area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 [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 [GRAPHIC] [TIFF OMITTED] 72963.001 [GRAPHIC] [TIFF OMITTED] 72963.002 [GRAPHIC] [TIFF OMITTED] 72963.003 [GRAPHIC] [TIFF OMITTED] 72963.004 [GRAPHIC] [TIFF OMITTED] 72963.005 [GRAPHIC] [TIFF OMITTED] 72963.006 [GRAPHIC] [TIFF OMITTED] 72963.007 [GRAPHIC] [TIFF OMITTED] 72963.008 [GRAPHIC] [TIFF OMITTED] 72963.009 [GRAPHIC] [TIFF OMITTED] 72963.010 [GRAPHIC] [TIFF OMITTED] 72963.011 [GRAPHIC] [TIFF OMITTED] 72963.012 [GRAPHIC] [TIFF OMITTED] 72963.013 [GRAPHIC] [TIFF OMITTED] 72963.014 [GRAPHIC] [TIFF OMITTED] 72963.015 [GRAPHIC] [TIFF OMITTED] 72963.016 [GRAPHIC] [TIFF OMITTED] 72963.017 [GRAPHIC] [TIFF OMITTED] 72963.018 [GRAPHIC] [TIFF OMITTED] 72963.019 [GRAPHIC] [TIFF OMITTED] 72963.020 [GRAPHIC] [TIFF OMITTED] 72963.021 [GRAPHIC] [TIFF OMITTED] 72963.022 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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