Liberty on Tap since 1984
The Recess Appointment of Donald Berwick
The White House's announcement today that they will bypass the nomination process of the United States Senate to recess appoint Donald Berwick as head of the Centers for Medicare and Medicaid Services (CMS) is an act of unconscionable hubris.
The White House claims this act is in response to "Washington game-playing", accusing Republicans of planning to "stall the nomination" as long as possible. This is nothing more than a baldfaced lie. Republicans cannot stall this nomination -- it is impossible for them to do so under Senate rules -- as not one hearing has been called or scheduled. Even the New York Times doesn't buy the White House’s explanation, reporting: "The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information."
In truth, it is the White House that is playing games with the health policy of the nation and the welfare of the American people. In bypassing the traditional process through which the Senate advises and consents to nominees, President Obama is preventing Senators and the people they represent from obtaining any answers from Mr. Berwick, who has repeatedly made claims and statements that raise numerous questions about his suitability for this critical position.
Such questions would have concerned his remarks attacking private-sector solutions to health care problems, in support of "rationing with our eyes open," and speaking of his affection for the United Kingdom's National Health Service as "romantic." In footage discovered and highlighted by the Heartland Institute in May, Mr. Berwick made this audacious statement: "Any health care funding plan that is just, equitable, civilized, and humane must, must redistribute wealth from the richer among us to the poorer and the less fortunate. Excellent health care is by definition redistributional."
Senators have expressed concerns about statements like these, as well as Mr. Berwick's background. He is a nominee with little management experience poised to head the second largest insurer on the planet, an agency with more funding to disperse than all but the top 15 economies in the world. In fact, the White House's decision to make this recess appointment is as much a demonstration of their unwillingness to have any debate about Mr. Berwick's views occur in the public eye as it is of their concern that some in their own party have privately questioned whether he is outside the mainstream.
Such questions are of course appropriate. Thanks to the White House's decision, they will not be answered. Understand: Mr. Berwick's position as head of CMS will give him unprecedented power to apply his views on health care policy under President Obama's new health care regime. Yet thanks to the White House's game playing, he will not answer one question, not one, before he is ensconced in a position where his radical policy views will ultimately effect the lives and health care of every American.
As we saw in the process of Obamacare's passage, there is nothing – not precedent, not tradition, not even the most basic expectations of fairness or responsible governance – that will stop President Obama and his allies in their quest to remake American social policy in their image.
Benjamin Domenech is managing editor of Health Care News.
The White House claims this act is in response to "Washington game-playing", accusing Republicans of planning to "stall the nomination" as long as possible. This is nothing more than a baldfaced lie. Republicans cannot stall this nomination -- it is impossible for them to do so under Senate rules -- as not one hearing has been called or scheduled. Even the New York Times doesn't buy the White House’s explanation, reporting: "The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information."
In truth, it is the White House that is playing games with the health policy of the nation and the welfare of the American people. In bypassing the traditional process through which the Senate advises and consents to nominees, President Obama is preventing Senators and the people they represent from obtaining any answers from Mr. Berwick, who has repeatedly made claims and statements that raise numerous questions about his suitability for this critical position.
Such questions would have concerned his remarks attacking private-sector solutions to health care problems, in support of "rationing with our eyes open," and speaking of his affection for the United Kingdom's National Health Service as "romantic." In footage discovered and highlighted by the Heartland Institute in May, Mr. Berwick made this audacious statement: "Any health care funding plan that is just, equitable, civilized, and humane must, must redistribute wealth from the richer among us to the poorer and the less fortunate. Excellent health care is by definition redistributional."
Senators have expressed concerns about statements like these, as well as Mr. Berwick's background. He is a nominee with little management experience poised to head the second largest insurer on the planet, an agency with more funding to disperse than all but the top 15 economies in the world. In fact, the White House's decision to make this recess appointment is as much a demonstration of their unwillingness to have any debate about Mr. Berwick's views occur in the public eye as it is of their concern that some in their own party have privately questioned whether he is outside the mainstream.
Such questions are of course appropriate. Thanks to the White House's decision, they will not be answered. Understand: Mr. Berwick's position as head of CMS will give him unprecedented power to apply his views on health care policy under President Obama's new health care regime. Yet thanks to the White House's game playing, he will not answer one question, not one, before he is ensconced in a position where his radical policy views will ultimately effect the lives and health care of every American.
As we saw in the process of Obamacare's passage, there is nothing – not precedent, not tradition, not even the most basic expectations of fairness or responsible governance – that will stop President Obama and his allies in their quest to remake American social policy in their image.
Benjamin Domenech is managing editor of Health Care News.
Comment
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Comment by Marcotte Anderson on July 13, 2010 at 7:20pm -
Hmm, my reading of that piece on the Bell nomination was that he got a hearing and (perhaps as a result of his testimony, or for other reasons) the committee declined to pass the nomination on to the full Senate for a vote. Whether or not they "officially" voted against him in committee, or simply let a deadline expire, the result is the same. The Senate, by committee in this case, refused to confirm the nominee. And yet Bush still put him in that position. It's not as if a minority was using a parliamentary trick (i.e. filibuster) to block it. In Berwick's case, the best the Republicans could do is filibuster, which in my view makes the recess appointment (at least partly) justified.
I'm such a research junkie. So I went and looked further into Bell. He was a commercial TV producer (According to Jim, Coach, among others) who, by his own admission, and little to no knowledge or interest in public broadcasting. He was an avowed conservative and moderate contributer to Bush ($1000 in 2000, $3000 in 2004). I couldn't find a record of his hearing, so maybe what you thought I was assuming was right, because here is a record of the hearing on Sep 21 2006 at 2:30 PM in SR - 253 where the other two members of the CPB who were nominated alongside Bell testified. (I hope that link works.) I looked at Nomination Hearings for that committee going back to April, 2006 and I didn't see his name, so it looks like the committee summarily rejected him.
Of course, this was at the Committee's discretion, so it's not an exact parallel. But I think it's worse for a President to contradict the will of the Senate (and the spirit of the Constitution) than it is to use a procedural trick to delay the testimony of someone who is going to be confirmed (or at worst, filibustered) anyway.
That said, I do think the Republicans should get the chance to question him. And unless he declines to serve past this year (which is highly doubtful - what can he accomplish in 5 months?), they will.
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Comment by Jim Lakely on July 13, 2010 at 6:39pm
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I stand corrected in that Bush didn't recess appoint anyone before a hearing was held. But where in that story does it say Warren Bell was rejected by a Senate committee? It says he was "stopped." Was there a vote? The story mentions no vote -- no official rejection by the committee. Stopped can also mean they simply never acted, which seems to be reflected in the contemporary quote from a White House spokesman:
"There had not been action in the Senate on his nomination," said White House spokesman Tony Fratto. "The president felt the need to get it done."
So ... let's assume you jumped to a conclusion. And, instead, the GOP, which controlled Congress at the time, didn't schedule a hearing for Bell. Let me be clear: They should have given Warren Bell a hearing. You seem to not care, or think it's dandy, that the Democrats are not giving Berwick a hearing -- and for an infinitely more consequential post.
For what it's worth, I'm no fan of recess appointments in general. They were instituted at a time when it took Congress many weeks to get to Washington in full -- and even difficult to have a quorum. That makes some sense in 18th and 19th Century America, but there's little sense to it now.
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Comment by Marcotte Anderson on July 13, 2010 at 6:22pm
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You keep dancing around this fact with the "everybody does it" stuff, Marcotte.
Well of course I do, Jim. After all, the point I'm countering is Benjamin's claim that this is not precedented and not traditional.
But [Bush] never did it before a hearing was even scheduled
And that's disgraceful. The spirit of the Recess Appointment is to install a person in an office when the Senate is unavailable to confirm him. The classic example is the country is on the brink of war, and our Ambassador falls ill and needs to be replaced, but the Senate is recessed for the summer. The President needs the power to put someone in place (temporarily) when the Senate doesn't have the chance to hold hearings. The recess appointment was not intended to be used when the Senate fails to confirm, or filibusters the confirmation of, a nominee.
Both parties have abused this provision to install their nominees against the will of the Senate, including in this case. (Even George Washington abused it.)
Just so I'm clear here, I don't approve of Obama's use of the recess appointment here. My issue is with the characterization of this tactic as unprecedented.
and he certainly never did it when his own party controlled everything
You're wrong. Warren Bell:
Warren Bell, of California, was nominated June 20, 2006, by President George W. Bush to be a Member of the Board of the Corporation for Public Broadcasting for the remainder of a six-year term expiring January 31, 2012. [1] Bells' nomination was sent June 26, 2006, to the U.S. Senate for confirmation. . . . Bell's confirmation got stopped in the Senate Committee on Commerce, Science, and Transportation by members of that committee. On December 20, 2006, Bush appointed Bell as a recess nominee, bypassing Senate confirmation proceedings until possibly late 2007.
He wasn't filibustered, like Pryor and Pickering were. He was rejected by the Senate Committee. With a filibuster, at least the use of the recess appointment is defensible, only because the filibuster is a more detestable rule.
In fact, I count at least 32 recess appointments by Bush (from this incomplete list) between 2003 and 2007, when the Republicans controlled the Senate. You weren't even close to right.
Would he have been confirmed? We'll never know now, will we?
Well, it's certainly possible that they could get the 41 votes need to at least filibuster him. But as I alluded to just above, using the recess appointment to bypass a filibuster is using one stupid rule to bypass another, more stupid, rule. And the Republicans made it clear that their primary goal was to use the hearings as "a way to attack the Affordable Care Act." My assessment of this situation is that Obama (and Rahm) made a calculated political move to deny the Republicans the chance to score political points, and so the Right is trying to get everyone up in arms about his political tactic.
So why not call the GOP's foolish bluff and use the hearings for Berwick as a way to help remind voters why they should be so thankful?
Why take the risk that the GOP might score some points? Obama is smart enough to realize how good the Republicans are at shaping the story and staying on message. We would see 20 talking heads a night, all repeating the same talking points. As good a politician as he is (and I mean that in the nastiest way possible ;), Obama isn't quite equal to the Right in getting the Democrats to espouse a consistent story.
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Let's also remember the responsibilities of governing, here. And who's in charge of everything.
You keep dancing around this fact with the "everybody does it" stuff, Marcotte. And you can argue that Bush did it, too. But he never did it before a hearing was even scheduled, and he certainly never did it when his own party controlled everything. Those are not minor distinctions.
Besides, the current Dem/Obama line is that America loves ObamaCare. So why not call the GOP's foolish bluff and use the hearings for Berwick as a way to help remind voters why they should be so thankful?
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Comment by Rick Henderson on July 13, 2010 at 4:23pm -
Would he have been confirmed? We'll never know now, will we? Unless he's resubmitted in 2011.
I understand why Obama might not want a confirmation hearing to become a venue for Republicans to explain what was in the bill that Democrats voted for (we have to pass it so we know what's in it, some backbencher said), particularly with an election on the horizon. Or for Democrats to defend legislation that remains unpopular (the latest evidence coming from Pew/National Journal).
Still, after all the promises of an administration that would end "business as usual" in Washington, do away with all the back-room deals, and be transparent and open, I suppose nothing surprises. Disappoints, yes. Surprises, no.
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Comment by Marcotte Anderson on July 13, 2010 at 3:17pm
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I understand the your distaste with the process, but I don't understand how the Bolton situation (or any time the recess appointment is used to bypass the Senate vote against confirmation) is better. I mean, in that case you have the nominee going before the Senate and getting rejected. The Executive then thumbs it's nose at the Legislature and says, "Too bad. This is my guy and I'm putting him in. Screw your Constitution. You can kick him out at the end of your term." (Which is basically what happened with Bolton - the nomination was filibustered.)
In this case, unless I'm wrong, it's a fait accompli that Berwick will be confirmed (or do the Republicans have enough votes for a filibuster?), so the hearing are basically a formality, albeit an important one. I mean, do you really expect something to come out in the hearings that will squash his nomination?
To address on of the points in the original post, the "Excellent health care is by definition redistributional" quote is hardly evidence of a rabid communist. It's mostly a statement of fact, though I'll grant there is a fair bit of subjectivity in the 'excellent' adjective. I would hope we all agree that a "just,equitable, civilized, and humane" health care plan would provide a minimum level of care to everyone, and it's not hard to see that the most destitute among us would need financial assistance in some form to attain that minimum level. You can hold the opinion that the current (err.. former) system we have (had) is just, equitable, etc., but you would have to admit that it is redistributing wealth.
Does that make sense? I'm not sure if I'm getting my thoughts out clearly. To put it another way, if you want a system that does not redistribute wealth at all, then you have to accept a system that will not be equitable or humane, because there will be a significant portion of citizens who cannot afford basic (let alone emergency) care.
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Comment by Rick Henderson on July 13, 2010 at 2:32pm
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Obama did promise change, I guess ...
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Comment by Rick Henderson on July 13, 2010 at 2:31pm
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The big difference I see is that, for the high-profile cases (mainly Bolton), Bush at least attempted to get his picks through the confirmation process before being thwarted. Obama didn't even go to the trouble of putting the guy through the vetting process that precedes hearings. Why? Is there something so fundamentally flawed about Berwick that he could not withstand the public scrutiny of a confirmation?
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Comment by Marcotte Anderson on July 13, 2010 at 1:11pm
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Rick, those are very good points, and strong counter arguments.
However, I still maintain that this is not the tyrannical overreaching by Obama that Benjamin is asserting. Bush's recess appointment of Bolton to the UN was Bush "and his allies['] . . . quest to remake American foreign policy in their image" against the will of the people.
What makes the Berwick case less remarkable or egregious is that this appointment is not against the will of the people (read: Senate). Had this gone through the normal process, he would be confirmed after a lengthy delay by Republicans, of which the only purpose would be to sling as much political mud as possible.
Again, I'm not saying Obama was right to go this route, only that a lot of hay is being made of something that is more or less par for the course for Washington. Like I said, Obama is being criticized for being as crafty a politician as Rove. Was the present company as offended by the various political maneuver executed under the Bush Administration?
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Comment by Rick Henderson on July 13, 2010 at 12:16pm
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Marcotte,
The position has been open since 2006, so it's difficult to argue that there was no time for hearings. (Interestingly, Obama floated Berwick's name in late March, so why the further delays?)
As a matter of policy, it would have made a lot more sense to have Berwick (or whoever) in place while the health care bill was being debated. Unless Obama knew that this guy is radioactive and doesn't want him to face the scrutiny of public hearings.
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