In the testimony that I submitted to the Senate Judiciary Committee on the Kagan nomination, I critiqued committee Democrats’ shoddy attacks on the Roberts Court. As I explained, Senator Cardin was simply wrong when he contended (as part of a showcase colloquy on the Senate floor) that the Court in Ledbetter v. Goodyear Tire & Rubber Co. had “said Mrs. Ledbetter had to file her case within 180 days after the beginning of the discrimination, and since she did not do that, her claim was barred by the statute of limitations.” On the contrary, I spelled out,
the Court in Ledbetter expressly left open the question “whether Title VII suits are amenable to a discovery rule”—whether, that is, in those instances in which the employee was not aware that she had been discriminated against when the discriminatory act occurred, the charging period would instead run from the time that she discovers that she has been discriminated against.
As I pointed out, the Court in Ledbetter noted that Mrs. Ledbetter did “not argue that [a discovery] rule would change the outcome in her case.” Citing (in my footnote 7) a National Journal article by Stuart Taylor, I also observed that the “obvious reason why she did not make that argument was that she had waited more than five years after she learned of the discrimination to file her EEOC charge—far longer than the 180-day charging period that applied under Title VII.”
I made these same points in my oral testimony. In addition, former Solicitor General Greg Garre, who was on the government’s brief in Ledbetter and who was testifying in support of the Kagan nomination, affirmed that the Court’s ruling was in line with numerous Supreme Court precedents.
I’ve just learned today that, some days after the hearing, Judiciary Committee chairman Patrick Leahy sent Mrs. Ledbetter a letter asserting that I had “made a crude allegation” in my testimony that Mrs. Ledbetter “had waited more than five years after [you] learned of the discrimination to file [your] EEOC charge.” Leahy invited Mrs. Ledbetter—who had testified on the panel before me—to respond to this “crude allegation” and to a related statement by fellow witness Robert Alt. In her response (dated July 19), Mrs. Ledbetter states that if she had known that Alt and I “were going to use the hearings to attack me personally, I would have stayed around so they could do it to my face.” She then states (among other things) that she “didn’t have any solid evidence, only suspicions,” that she was being paid less. (Leahy’s letter and Ledbetter’s response are both available here.)
1. Leahy is evidently trying to divert attention from my central point about the Ledbetter ruling—that Senator Cardin’s account of it, on which he based his vehement denunciation of the Court, utterly misreads the case.
2. What Leahy calls my “crude allegation” is a point that Stuart Taylor and others have made repeatedly since the Court’s ruling in Ledbetter in May 2007. (See, e.g., Taylor’s June 2007 Atlantic article (“Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire.”) as well as the article I cite in footnote 7.) Mrs. Ledbetter and her defenders had ample opportunity to dispute that point. So far as I’m aware, they hadn’t done so.
Now, if it turns out that I’m wrong on this minor side point (which I’ve never independently explored), I’d be happy to correct the record. But I hardly think that it’s fair for Leahy to call the previously uncontested proposition, with supporting citation, a “crude allegation,” or for Mrs. Ledbetter to claim that I was attacking her personally.
3. Mrs. Ledbetter’s response seems inconsistent with her sworn testimony to the committee in some respects. In an exchange with Senator Klobuchar, Mrs. Ledbetter stated (emphasis added):
I only learned about the discrepancy in my pay after 19 years, and that was with someone leaving me an anonymous note. Because otherwise, I would not have known, because Goodyear prohibited each one of us from ever discussing our pay or we would not work there. So our pay was never discussed and we could not find out. And that was the only way I had to find out.
But in her letter to Leahy, Mrs. Ledbetter states (emphasis added):
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 [Whelan and Alt] 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.
4. I find it amusing that Mrs. Ledbetter complains that I didn’t present my account “to [her] face.” For what it’s worth, when I was first informed of the hearing panels, I was told that I would be on the same panel as Mrs. Ledbetter. I submitted my testimony more than 30 hours in advance of the panel and highlighted it on Bench Memos, so committee staffers had ample time to know what I would say. It was only after all the testimony was due that Leahy and his staffers did a bizarre reshuffling of the panels that resulted in adverse witnesses on topics not being on the same panel. I can’t prove it, but I suspected at the time that Leahy and his staffers did the reshuffling (at least in part) to protect Mrs. Ledbetter from facing witnesses who would expose her mischaracterizations of the Ledbetter case.
There were some genuinely crude allegations that were made during the Kagan hearing—the reckless attacks by Senate Democrats about the Roberts Court. Don’t let Leahy’s diversion on Ledbetter obscure that fact.