Nominations in the Digital Age

The Senate Judiciary Committee has issued its questionnaire to President Obama's Supreme Court nominee, Elena Kagan, and the committee members know, pretty much, what she'll give them in return. Kagan was nominated just last year as solicitor general, and as she submits for a second time her full record of published writings and public statements--the sum total of her public, professional career--she may come up with more, given the higher profile of the Supreme Court job, but there are few surprises expected from Kagan.

As we wait for her questionnaire to be returned, however, it's a good moment to look at a recent phenomenon for executive and judicial nominees.

In the digital era, everything is available, and there's much, much more of it.

Nominees to the Supreme Court and other high profile positions are required to provide the Judiciary Committee with everything they've ever written or said publicly, to the best of their abilities within reason. Not long ago, before the advent of Lexis-Nexis, entire news articles in local papers could go wholly unnoticed, by both the nominee and committee members and staff.

Now, it's much easier to find things, thanks to the Internet. Also thanks to the Internet, there are new forms of media that didn't exist before. The last major judicial nominee reported out by the Judiciary Committee, Ninth Circuit nominee Goodwin Liu, included links to YouTube videos of lectures and talks he gave, along with 573 pages of public writings, new articles about him, syllabi from courses he taught, statements about legal issues, etc. Liu searched 36 websites, including the ACLU of Northern California and Yale Law School, for any mentions of himself.

Imagine what will happen a few years down the road, when nominations are given to people who have used things like Facebook and Twitter before they even considered jobs on the Supreme Court. All that will be fair game, and probably demanded by the Senate Judiciary Committee, which could mean thousands of pages for nominees to compile, and for staff and members to review.

There are many, many opportunities for people to say things publicly, in a documented way, these days. Imagine what will happen when, decades from now, a president nominates someone to the Supreme Court who had access to Twitter, MySpace, and Facebook at the age of 15.

Joshua Green suggested, on this blog, that Obama could nominate Hillary Clinton to the court. If he had, every place Clinton was ever quoted during her 2008 presidential campaign--across the spectrum of political blogs and online media--plus everything her campaign ever pushed out under her name over Facebook, Twitter, e-mail, or the campaign's website, plus any YouTube video uploaded from any cell phone during her very public campaign, nearly every second of which was recorded--all of that would have to be compiled and submitted to the Judiciary Committee, then reviewed.

Just something to think about as Kagan's entire, documented public career is compiled and pored over. In a few years, this could look like nothing.