COLUMN: Mike Fragoso: Take the fight to Schumer with James McDonald

In his memoir, The Long Game, Sen. Mitch McConnell (R., Ky.) recounts how, following the 2016 elections, he “spoke with President [Donald] Trump about the Scalia vacancy.” He “urged [Trump] to name the best-qualified conservative candidate, since filling this slot would almost certainly lead to a show-down over the question of filibustering Supreme Court nominees.” Knowing both that he’d need to nuke the filibuster to fill the seat and that he had a mere 52-48 margin, “if any question existed as to the nominee’s fitness for office, it might result in the nomination’s defeat.”

Trump went on to nominate Neil Gorsuch, D.Phil. (Oxon.), and the rest is history. McConnell argued persuasively to moderates like Sens. Lisa Murkowski (R., Alaska), John McCain (R., Ariz.), and Susan Collins (R., Maine) that if Democrats won’t confirm this guy they won’t confirm anyone. It worked and the filibuster was abolished. Thanks to Sen. Chuck Schumer’s (D., N.Y.) alternating devotion to and fear of his party’s progressive base, the pieces were positioned for McConnell’s ultimate checkmate with Brett Kavanaugh and Amy Coney Barrett.

Schumer seems to have learned nothing from this episode while Trump may remember its lesson. The selection of James McDonald to replace DNI-designate Jay Clayton as U.S. Attorney for the Southern District of New York is a Gorsuch-like move in Trump’s quest to abolish the blue slip.

McDonald is no Palm Beach insurance lawyer. A partner at Sullivan & Cromwell, McDonald is platinum plated — a pick right out of the Eisenhower administration. He ran enforcement for the CFTC, was an AUSA, and worked in the George W. Bush White House Counsel’s office. He clerked for Jeff Sutton, king of the conservative judicial establishment, and the Chief Justice. Beyond credentials, McDonald’s law firm represents the New York financial institutions whose generous donations over the decades have allowed Schumer to ascend from an abortion obsessive representing Brooklyn in the House to the heights he currently occupies. In other words, if Schumer won’t agree to McDonald, he won’t agree to anybody.

The blue slip is very important and should be preserved. Senators should be able to (and should) veto nominees whom they believe are unqualified for office or ill-suited to their states. This important principle can’t mean that the president can’t get a nominee. By blocking McDonald, Schumer would be saying that no Republican can be U.S. Attorney in Manhattan, just like nine years ago he said that no Republican could replace Antonin Scalia on the Supreme Court.

Senate Republicans — starting with the institutionalists —should remind Schumer of his folly and force him to live with the consequences of repeating it. That no Republican is fit to serve as U.S. Attorney in Manhattan is an intolerable situation, but Republicans also can’t take Trump’s bait and abolish the blue slip and the valuable protections it entails. Luckily, there’s a recess coming up.

If Schumer and Sen. Kirsten Gillibrand (D., N.Y.) don’t return their blue slips on McDonald by the July 4th Recess, Republicans should adjourn without pro forma sessions thereby allowing the president to make recess appointments. Just as the stupid filibuster of Gorsuch spread the pain to all Democrats with the ascent of the McConnell Court, stupid obstruction of Jamie McDonald should spread the pain to every blue state. One should perhaps shudder at the prospect of President Trump making recess appointments, no one dreads the prospect like blue-state Democrats. The threat of recess appointments makes it clear to Schumer’s members that he’s betting on his own hand using their money.

Institutions matter and the Senate as an institution is guided by its traditions like the blue slip. In order for them to persist they need to be applied with prudence. Floor holds were an important tradition but the bipartisan abuse of blanket holds has functionally abolished them in the face of the imperative to govern. Blue slips risk going down the same path if Democrat abuse doesn’t cease. An actual recess may be the hard medicine Democrats need to behave responsibly — and its threat may remind Schumer why he should resist progressive demands to play a losing hand.

This is not to say that Senate Republicans should just cave to the President. The McDonald-related caper he announced this morning (Bill Pulte as DNI until blue slips on McDonald and no FISA until SAVE America Act) would have been dismissed as too fantastical and unrealistic even by the Capitol-Hill-townhouse class of conservative activists. Senator Tom Cotton’s announcement on the Clayton hearing set the correct tone in response. Blue slips aren’t going anywhere. The SAVE America Act still lacks majority support.

But the president’s behavior doesn’t absolve Senate Republicans of fighting. They should fight Democrats. Simply declining to elect the President de facto Majority Leader isn’t enough. His nomination of McDonald has identified a real problem with Democrat obstruction and Republicans have an obligation to use the tools at their disposal to fix it. They shouldn’t use the tools the President demands they employ like abolishing the blue slip. They should use the better tool the President has given them with the selection of McDonald.

Run the Gorsuch play. Make Schumer defend the proposition that no Republican can run the Southern District of New York. And remind him that he will regret this — and may regret it a lot sooner than he thinks. Indeed, July 4th is just weeks away.