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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 

( 

(II) 

[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. 

(III) 

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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1369 

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 

1370 

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 

Æ