This chapter examines litigation related to the appointment of federal judges, including administrative law judges (ALJs). Key issues raised in this litigation include recess appointments, the confirmation process, and whether and how the Appointments Clause applies to non-Article III judges including ALJs. In recent years, most of the litigation over federal judicial selection has concerned the appointment of ALJs.

Chapter 8 covered cases specific to nonelective systems, including the Missouri Plan, other appointment (mostly gubernatorial) systems, and legislative elections. The Missouri Plan cases mostly concerned the membership and processes of nominating commissions. Appointment cases concern issues such as requirements for legislative (usually state senate) confirmation and recess appointments. The legislative election cases generally dealt with technical issues (e.g., whether the vote in the legislature could be a voice vote or required ballots).

Utah was the last state where the voters approved the adoption of a Missouri Plan system. That happened in 1985, but the antecedents of that change can be traced to the mid-1940s when Utah voters approved a constitutional amendment empowering the legislature to decide how state judges should be selected and retained with the specification that partisan politics could not be an element of the process. In 1967, the legislature adopted many elements of the Missouri Plan by requiring the governor to fill vacancies, either interim or at the end of a term of an incumbent who did not run for reelection, from a list of candidates forwarded by a nominating commission. Incumbents faced either a nonpartisan election if an opponent filed to run or a retention election if there was no opponent. In 1985, as part of a larger process of constitutional revision, the voters approved a new judicial article that removed the legislature’s power to determine the means of judicial selection/retention and installed a modified Missouri Plan system.

The common thread in Missouri, Kansas, and Oklahoma is the effort by conservatives, both in the legislature and outside, to end the role of nominating commissions in judicial selection. This effort was prompted in each state by decisions made by the state's supreme court, when the majority of justices were selected by Democratic governors. It also reflects the broader view among conservatives, demonstrated by what happened in Tennessee where the nominating commission was abolished, that the dominance of lawyers on the nominating commission tends to produce liberal judges. In these three states, with the exception of one court, eliminating the nominating commission requires a constitutional amendment. The one exception is the intermediate Kansas Court of Appeals because it is a creation of legislature, which allows the legislature to set the method of selection and retention; in 2014, the Kansas legislature abolished the nominating commission for that court. The Republican-controlled legislatures in these three states have not succeeded in getting the needed majorities, or supermajorities, required to send a constitutional amendment to the voters.