Comment: Will voters understand that our judicial system is also present in the 2024 election?

Democrats will have the chance to retain control of the U.S. Senate after the November elections. Yet Supreme Court Justice Samuel A. Alito Jr. recently showed once again why this is imperative: A Republican-led Senate would confirm more far-right ideologues like him to the federal bench if Donald Trump would re-choose the candidates, or block a large number of them. Joe Biden’s choices if the president is re-elected.

First for Alito’s story: An upside-down American flag flew in his yard for days in January 2021, the New York Times first reported. That such a thing could happen at any time in the home of a Supreme Court judge is abhorrent. That he did so while the inverted flag served as a banner for mobs who had just besieged the Capitol and attempted to overturn an election is not only arguably unethical (the Supreme Court was hearing related cases Trump-inspired “Stop the Steal” effort, and still is) but downright seditious. It doesn’t matter if the uprising was the work of his wife, as Alito vilely claimed.

Then on Monday, Chris Geidner, in his Substack Law Dork publication, revealed that Alito appeared to have joined the Bud Light boycott last year to protest that brand’s reported support of transgender people.

According to federal reports released by Geidner, Alito sold shares of Bud Light maker Anheuser-Busch at the height of the controversy last summer and bought shares of rival Molson Coors. The deals did not involve large sums of money, but then again, cases related to transgender rights were – and are – working their way through the courts to the Supreme Courts.

To make matters worse, on Wednesday, the New York Times reported that another protest flag associated with right-wing pro-Trump sentiment was flown from the Alitos’ vacation home in New Jersey last summer.

Alito’s apparent blindness to conflicts of interest and penchant for sullen displays of right-wing partisanship are second only to those of his fellow Republican appointee, Judge Clarence Thomas, wife of the “Stop the Steal” schemer »Ginni Thomas. Both judges reject calls to recuse themselves from cases pending since January 6. Both are complicit in, and perhaps responsible for, the court’s unacceptable delay in deciding whether Trump is immune from criminal prosecution for his role in the attempted insurrection. We could get his decision by July, probably too late for a trial before November.

Additionally, both judges are around 75 years old. And this is where the political calculations regarding the Senate come into play.

It is widely believed among judicial observers and experts that Alito and Thomas may well retire if Trump wins another term, so that he can appoint much younger versions of themselves who could serve for more many decades alongside Trump’s trifecta of fifty-somethings: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Trump could elevate younger judges such as those he hired for the lower federal courts — for example, 40-something district court judge Aileen Cannon, who helpfully suspended her trial indefinitely over concerns classified documents, and Matthew Kacsmaryk, whose ruling banning a pill used for most abortions is currently in effect. before the Supremes.

A Republican-controlled Senate would likely speed up the process of nominating Trump’s nominees to the high court, and perhaps more than a few hundred others to the lower federal courts — just as it did the first time for Trump . A Senate still under Democratic control, however, could likely force a re-elected Trump to recruit more moderate judicial nominees and, if he refuses, could slow down, sideline or reject extremists. Like more Alitos and Thomas.

Lest anyone doubt that Republican senators would be a treadmill for right-wing judges under Trump, or a blockade against Biden’s nominees if he wins a second term, Senate Republican leader Mitch McConnell reiterated Wednesday their MAGA apologist mindset. When asked by a reporter for his opinion on the Alitos flag, McConnell responded curtly: “I’m not going to dignify that with an answer.”

Talk about misplaced outrage.

More voters, both Democrats and independents and moderate Republicans who oppose right-wing activists throughout our judiciary, need to vote for the Senate as well as the presidency with the makeup of the House in mind. courts – as conservative voters have successfully done for decades. Democratic candidates, including Biden, are doing more to raise awareness. But that is not enough. The message must be explicit and frequent: the courts are also on the ballot.

A big test is unfolding in Democratic-blue Maryland, among other places. Larry Hogan, the popular former governor and likely the state’s only Republican likely to be elected to the Senate, won his party’s nomination last week to fill the seat that Democratic Sen. Benjamin L. Cardin is giving up. Democrats must defend this seat alongside those of incumbents from the red states of Ohio and Montana, as well as the swing states of Pennsylvania and Wisconsin. The party, with just a two-vote majority now, has already vacated the Senate seat Democrat Joe Manchin III is vacating in Trump-loving West Virginia, so every seat is crucial.

Hogan, a sympathetic pragmatist and critic of Trump, appeals to some Maryland Democrats despite his party label, as well as moderate Republicans and independents who have otherwise soured on the Republican Party in the Trump era. Many of them supported him for governor and might for senator. To seduce them, the former “pro-life” governor declared himself a “pro-choice” candidate for the Senate.

Yet since the stakes in the Senate are much higher than just Maryland, Hogan Democrats and other anti-MAGA fans should resist his charms this time. His victory would make it all the more likely that Republicans would take control of the chamber with the power to confirm federal judges. His Democratic opponent, well-respected County Executive Angela D. Alsobrooks, is showing early signs of wanting to hammer home that point.

His challenge is to get voters who like Hogan to think strategically and do their part to help keep the Senate out of MAGA Republican control. The makeup of that other branch of government – the Supreme Court and the rest of the federal judiciary – could depend on it. This should be the thumb on the scale.

(Jackie Calmes is an opinion columnist for the Los Angeles Times in Washington, DC)