JONATHAN COHN JULY 12, 2010
Last week, President Obama named Donald Berwick as head of the Centers for Medicare and Medicaid Services. He used a recess appointment, which means Berwick won't go through Senate confirmation--or, in this particular case, get so much as a hearing.
I defended the move, basically arguing Democrats needed to exploit procedural rules because Republicans were doing the same to them, especially over appointments. Several of my readers, particularly conservative ones, wrote back to say they disagreed. Among them was Tevi Troy, a former deputy secretary at HHS who is now a visiting senior fellow at the Hudson Institute. I always take Tevi's arguments seriously and advise readers to do the same:
Jonathan and I are friends who often disagree on policy, but we are much more likely to agree on process and tone. Therefore, I was surprised to see Jonathan support the premature recess appointment of Dr. Berwick to head CMS.
I typically think that presidents deserve a great deal of deference in their personnel selections. I have not publicly opposed any of the Obama administration's nominees, Dr. Berwick included. I am also not averse to recess appointments in cases where the Senate is clearly dragging its feet or tripping someone up via rotating anonymous holds. In this case, however, I think the White House was unfair to both Berwick and CMS by recess appointing him before he could have a hearing.
Being a confirmed appointee really makes a difference at the agencies, and it is worth taking some political hits to give your nominees that important blessing. Given the Democrats' strong 58 seat majority in the Senate, Dr. Berwick could have gotten there if the White House had just let the process play out.
When I told Jonathan that I disagreed with him on this issue, he said that if the Republicans were willing to promise that they would not filibuster Dr. Berwick, then he would be willing to say that the White House was wrong to go this route. I disagree. Nobody, Republican or Democrat, could or should make that promise, as we can't know what information the confirmation process will reveal. Furthermore, the Republicans had not filibustered or obstructed this nomination before the recess took place, largely because they wanted to have a chance to question Dr. Berwick on his controversial views.
If the Republicans had filibustered Dr. Berwick or held back the nomination after a hearing and after he had answered all of the Senate's written questions and President Obama had then recessed him, I know that I wouldn't have raised any objections. More importantly, the Republicans wouldn't have had as strong a case against Dr. Berwick's appointment as they do now.