Damage is already done by the Berwick recess appointment

William Pierce Contributor
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The recent behavior of the Obama administration regarding the recess appointment of Dr. Donald Berwick to be Administrator of the Centers for Medicare and Medicaid Services (CMS) took a new twist a few days ago when the White House resubmitted his name to the Senate Finance Committee for consideration.

This raises the question – what are they thinking?

After waiting nearly a year to formally nominate Berwick (it had been rumored since last summer that Berwick was the choice of the White House), then waiting several months as the Finance Committee worked through its process, the White House abruptly gave Berwick a recess appointment that allows him to serve as the CMS Administrator only until the end of 2011 without going through the formal confirmation process.  As would be expected, Republicans immediately criticized the action, took every opportunity to criticize the White House and re-litigate the health care reform law.  Even the Democratic Senate Finance Committee Chairman Max Baucus (D-MT) expressed concern about the action.

Then they re-submitted his name for confirmation.

Regardless of why they pulled a Keystone Cops maneuver, that is hard to figure, the episode is a clear demonstration of the continuing collapse of the governing process in Washington.  This event matters because it contributes to the public’s growing distrust of the political parties.  At a minimum the public expects members of Congress and the president to govern, at maximum to inspire.

In this particular mess, neither side’s hands are clean.

It was one of Washington’s worst kept secrets that Berwick was the administration’s pick for the job.  Therefore, there was no excuse for the White House to wait this long to nominate him.  The argument that they had to wait until the bill became law so as to avoid a nomination fight in the middle of the debate over health care makes no sense.  Was the White House incapable of handling both?  Second, would nominating Berwick last year have intensified the fight?  That is hard to imagine.  Would it have been better to have a CMS Administrator in place all last year?   Absolutely.  There was a clear vacuum of leadership at CMS.

Despite the re-nomination, by initially bypassing the confirmation process the White House has tied at least one of Berwick’s hands behind his back.  If the White House thinks by re-nominating Berwick they can put off the tough questions until the confirmation hearing, they are mistaken.  Republicans will not wait since a confirmation hearing could come anytime between now and when his recess appointment expires in December of 2001.  Therefore, for the foreseeable future, and until he has a confirmation hearing, every time he appears before Congress, Republicans will use the opportunity to question him about issues they would bring up at a confirmation hearing, and who can blame them?  This is a classic Catch 22 because as the CMS Administrator Berwick has a responsibility to appear before Congress to testify about the new law, so he can’t wait until a confirmation hearing is scheduled.

The shame of it is that Dr. Berwick is well qualified for this job, but through its bungling the White House has made a mess of things — what a shame.

What is hard to figure out is why the White House did this?  Even though the going would have been rough, there was no indication that Berwick would not have been confirmed.  In fact, part of the reason why no hearing had yet been scheduled was because he and/or the White House was slow to provide all the information the Committee asked for so they could fully assess his nomination.

Because the White House was slow to support its nominee is no reason to by-pass the process.  And why did they send his name up again for confirmation?  Clearly they misread what the reaction would be to the recess appointment.  All-in all, it’s terribly cynical behavior.

And blaming the GOP rings hollow considering that the Senate Finance Committee Chairman Senator Baucus was caught off guard by the announcement and very unhappy at the White House’s actions.

However, the GOP’s position was no better.  Berwick is without a doubt well qualified to lead CMS.  He has the support of three previous CMS Administrators from Republican administrations as well as all the major health care and medical groups.  Republicans still bitter over the health care reform debate saw an opportunity to re-litigate the issue and try and score political points to help their election chances in November.  If they thought they could defeat Berwick and get someone better they were mistaken.  Berwick is as good a nominee as they are going to see.  Also, and most importantly, while it is perfectly legitimate to try and position themselves for the fall elections, governing trumps politics.  CMS needs an administrator.  There is no legitimate rationale for delay by either side.

Taken as a whole, this series of steps by the White House has done nothing but damage the governing process and sow more mistrust.  The White House handed the GOP a great opportunity to re-litigate the health care debate at a time when a good portion of the public is confused and undecided about their view of the law.  The re-nomination only compounds the situation.  This does not serve the public’s interest.

William Pierce is the Senior Vice President for APCO Worldwide, Inc.