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.

The book opens with a discussion of a case from Delaware challenging a long-standing requirement for partisan balance on state courts in the Delaware state constitution. The chapter goes on to note that substantively Marbury v. Madison (1803) was a case about the judicial appointment process. After a brief discussion of recent litigation over the appointment of federal administrative law judges, the chapter notes that litigation over judicial selection is consistent with Alexis de Tocqueville’s observation that “scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.” The chapter identifies several expectations, describes the data collection process, and briefly outlines the chapters that follow.