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).

Chapter 4 discusses the types of cases that are the most consequential: those challenging the existing system of judicial selection and those concerning proposed or enacted changes to the system. The majority of challenges to systems were brought under the Voting Rights Act, which the US Supreme Court found to cover judicial elections, at least in certain ways. Efforts to challenge judicial elections under the one person, one vote doctrine were not successful because that doctrine applied only to “representatives,” a category not including judges. There were unsuccessful challenges brought on other grounds as well. The cases involving proposed and enacted changes covered a wide range of such changes.

Federal courts only represent one kind of selection mechanism – appointment by the executive with the advice and consent of a legislative chamber. Because selection mechanisms vary across different jurisdictions, Chapter 6 explores how patterns may vary with regard to state courts. Indeed, part of our overall argument is that different selection mechanisms can both restrain and facilitate the incorporation of politics into judicial selection. As we show, appointments systems – like the appointments process used to name federal judges – are more sensitive to the needs and preferences of the political parties; by contrast, systems that lean toward merit-oriented criteria – including systems that are reliant on merit commissions, nonpartisan bodies, and local and state bar associations – are more sensitive to the needs and preferences of the bar. Thus, given the tension between political actors and the bar that characterizes the judicial tug of war, certain judicial selection systems may (or may not) be favorable to the different players. In other words, judicial selection mechanisms set the rules by which the tug of war is played.

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.