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Should Democrats have recess-appointed Donald Berwick?

berwicklong.JPGTevi Troy says that the problem with the administration's recess appointment for Don Berwick was not the appointment itself, or even the procedure used to enact it, but the timing of that procedure. In particular, it happened before Republicans had time to demonize and filibuster Berwick, rather than after. "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," Troy says, "I know that I wouldn't have raised any objections."

I find myself a bit baffled by this argument. Republicans made quite clear that they were going to use Berwick as a way to attack the Affordable Care Act, taking a few quotations from his speech praising and critiquing the National Health Service and turning them into an argument that Berwick and Obama planned to bring British-style rationing to the United States. Mitch McConnell, previewing that strategy, had already called Berwick an "expert on rationing." The Republican Policy Committee pulled together an oppo memo, which said, in part, "The American people should have their eyes open to the ramifications of NICE-style rationing in the United States as part of Democrats’ brave new health care world."

In other words, it was pretty clear how this was going to go: Republicans were going to use Berwick and the NHS as a way to hammer Obama and the Affordable Care Act. Then, as has happened to so many bills and nominees, they were going to filibuster him. It is hard for me to even believe that anyone considers these predictions in doubt. As such, the choice for the administration was between recess-appointing Berwick now, before Republicans damaged and blocked him, or later. If they went with later, it's possible they'd have to find another nominee, as Berwick would've been damaged, and though Troy might not have criticized them for a recess appointment, others would have gone to town on them for appointing this rationing-friendly maniac who couldn't even survive a Senate hearing.

I don't like this state of affairs. As I keep saying, the procedural arms race set off by the endless filibuster is bad for both parties, and needs to be ended. But it does seem like the argument here is that Democrats should have acted in good faith even though Republicans seemed poised to act in bad faith, and even though there were real consequences both for Berwick and for the administration if Republicans crucified and then blocked him. And I'd just close this post by reminding people who we're talking about: As Thomas Scully, who ran CMS under George W. Bush, said, “[Berwick] is universally regarded and a thoughtful guy who is not partisan.”

Photo credit: Goodman Media.

By Ezra Klein  |  July 12, 2010; 2:39 PM ET
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I just don't see why anyone would want to do a confirmation hearing with no guarantee that that nomination will get an up or down vote. Dawn Johnson was left hanging for a year after her confirmation hearing. Republicans used the tradition of nominees not responding to criticism while under consideration to ceaselessly pillory her and distort her positions, while she couldn't defend herself.

I can see why Obama didn't want to put another accomplished professional, who has a full life outside of politics, through months of character assassination because the Senate repiglicans won't allow a vote on his nomination.

Posted by: srw3 | July 12, 2010 2:56 PM | Report abuse

I agree here, but I also think we need a rationing expert. The hypocritical position of the Republicans on this is sad politics. We do need to figure out how to ration, since the demand for life extension appears to be rather larger than the funds available to support it. I would think that most people would rather ration themselves- to be given a budget to spend, rather than be told by the government what they are allowed to have. As Berwick has suggested, autonomy is a key to satisfaction. However, he doesn't seem to be thinking with mind of a person that believes we ought to be devoting less money to medicine.

Posted by: staticvars | July 12, 2010 3:08 PM | Report abuse

Yet again, as with Sen. Kyl's comments below, we see that reasonable conservatives lose out because irresponsible people run their party.

Posted by: MosBen | July 12, 2010 3:26 PM | Report abuse

Ezra, Ezra, Ezra, you should know by now that the people in Congress have their petty procedures that MUST be obeyed. They all have their committees where they act out their little sham "hearings" and each of them gets an allotment of time to drone on for no particular reason. Take away their "right" to have a captive audience for a few minutes, and they get TESTY.

Posted by: adagio847 | July 12, 2010 3:55 PM | Report abuse

This is a five month stint for this guy, what a waste of everyone's time.

The full Senate will never confirm Berwick after this little stunt by the WH, so his commission will expire along with the next Congress. His time is quite scarce, I hope he rations appropriately.

Posted by: JackIL08 | July 12, 2010 3:58 PM | Report abuse

The charade is over. Obama was elected to fix the mess Republicans made. They're trying to make him fail. Americans are suffering as a result. He needs to fix the mess without their help and in spite of their best efforts to stop him.

Republicans are the true anarchists. They pour sand into the machinery of Government, they sabotage all attempts by the duly elected Constitutional Government to function. They support the use of torture and protect those that engage in torture.

Fear, Hatred, Distortion, Distraction and Division is all Republicans have to offer America.

Posted by: thebobbob | July 12, 2010 4:11 PM | Report abuse

The refreshing thing about this post is the concession by Ezra on just how despicable the British NHS is.

Posted by: FastEddieO007 | July 12, 2010 4:15 PM | Report abuse

Set aside for a moment the Republicans and what they might have (probably would have) done. Let me ask some better questions:

Is everyone saying that it's just fine & dandy that Dr. Berwick never saw fit to answer preliminary questions posed to him by Senator Baucus (who, you will recall, is a Dem)? Do you all agree that even the Dems should not have been able to ask the nominee questions about his finances? Are we saying that gosh, those poor nominees ought not have to answer tough & probing questions from Senators of either party?

If so, then why not just do away with the confirmation process altogether and give the President the power to appoint candidates by Executive Order?

Oh yeah, for a minute there I forgot about that separation of powers and checks and balances thingy. . . . what a nuisance!

Posted by: Policywonk14 | July 12, 2010 4:31 PM | Report abuse

Policywonk -
We should do away with the confirmation process for most Executive branch appointments. An appointee should only require Senate confirmation if the position is in line for Presidential succession as defined by the Presidential Succession Act. The rest of them are strictly Executive branch employees and the President should be able to choose them without interference. (And yes, I believed this even when Bush was President)

Presidential appointees to non-Executive branch positions such as the Judiciary and Federal Reserve should also require Senate confirmation.

Posted by: TXAndy | July 12, 2010 4:47 PM | Report abuse

The good news is that the Social-Democratic Party strategy virtually assures that Berwick will never be confirmed and will simply vacate the office at the end of this Congress. This might be seen as bad news by the handful of PPACA supporters remaining.

In any event, the PPACA is fiscally unsustainable (so says OMB and CBO, as well as experts) so who really cares who's at the helm of the sinking ship?

Posted by: rmgregory | July 12, 2010 4:55 PM | Report abuse

I believe that Ezra is advancing the classic "ends justify the means" argument. The appointment of Donald Berwick was apparently so critical to the Republic that there was no need to even have him finish filling out the paperwork or have the Democratic majority Senate schedule the hearings, if there was a possibility of inconvenient questions for him by the minority party.

I would encourage all who support this line of reasoning to think how they would have reacted if Bush had done this with say the head of the Social Security Agency in order to get a controversial appointee who supported privatization for example.

I would have been interested to have heard the late Senator Robert Byrd's opinion on this recess appointment.

Posted by: jnc4p | July 12, 2010 5:03 PM | Report abuse

Also, I would have liked to seen Dr. Berwick defend this statement publicly:

"Fifth, please don’t put your faith in market forces. It’s a popular idea: that Adam Smith’s invisible hand would do a better job of designing care than leaders with plans can. I do not agree. I find little evidence anywhere that market forces, bluntly used, that is, consumer choice among an array of products with competitors’ fighting it out, leads to the health care system you want and need. In the US, competition has become toxic; it is a major reason for our duplicative, supply-driven, fragmented care system. Trust transparency; trust the wisdom of the informed public; but, do not trust market forces to give you the system you need. I favor total transparency, strong managerial skills, and accountability for improvement. I favor expanding choices. But, I cannot believe that the individual health care consumer can enforce through choice the proper configurations of a system as massive and complex as health care. That is for leaders to do."

I'd like to see Dr. Berwick debate Rep. Paul Ryan. Perhaps Ezra could moderate.

Posted by: jnc4p | July 12, 2010 5:08 PM | Report abuse

It was possible for Obama to nominate a mainstream middle of the road non-ideaologue to the post in which case it'd likely have been a win for Obama who would've watched a few extremist Republicans overreach and try to demonize him.

By openly using the backdoor to get an openly pro-Marxists healthcare rationer in charge of our elderly's health pays a relative small political price.

But at least those death panels are finally getting some faces. Progress!

Posted by: FastEddieO007 | July 12, 2010 5:10 PM | Report abuse

Troy is terribly naive. Conservatives would have had it in for Berwick if they had a chance to tar and feather him. If Republicans were grown-up opposition members, I could understand their anger, but they are not. They have added nothing useful to policy conversation for at least a couple of years. Obama has crucial work to do in creating the regulations to go with legislation, and he has no time to waste. The recess appointment of a highly competent person shows me he is serious, unlike his opposition.

Posted by: ciocia1 | July 12, 2010 5:54 PM | Report abuse


even though I think Berwick would've won that debate, I would have loved to see it too. I would've paid.

That's sort of the problem. I intensely believe Berwick's the best man for the job and know the intellectual argument for Berwick wins. But the hearings aren't against Rep. Ryan at his wonkiest (I like him at his wonkiest, and think the Republicans botched their party and HCR by not taking a wonky-conservative-pro-HCR angle, lead by guys like Ryan). The hearings were to be a show, to spread more lies, new lies, about HCR just in time for the midterms. It was the right move, though sad to choose not to have a fight that could've been won had it been a fair fight.

Posted by: ThomasEN | July 12, 2010 6:04 PM | Report abuse

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Posted by: tsgoneo | July 13, 2010 1:41 AM | Report abuse

The Berwick appointment reminds me of:
The Federal Reserve Act of December 23, 1913. 103 congressional votes were absent for the holidays when the Federal Reserve became law. American dollar, along with the reins to their economy were handed to the bank families of the Federal Reserve. Not only was the vote to enact the Federal Reserve illegal, the act is also unconstitutional defying our forefather's constitution.

This was the first coup d'état by the international banking moguls in the United States. Well, due to the partisan controversy created by the media masterminds regarding the Berwick appointment during the holiday break, Americans were not looking when medicine and healthcare were handed over to the banking/insurance industry.
Great strides can be made during a 5-month period when all of the 'right' people are in place. So, sit back, help yourself to some popcorn,and closely watch what happens.

Posted by: MedicalMind | July 13, 2010 5:22 PM | Report abuse

Klein wrote "Republicans seemed poised to act in bad faith."

Why is it "bad faith" to criticize and oppose a terrible appointment?

Clearly it is bad faith on the part of Obama to refuse to go through the process of obtaining Senate approval of his appointments when one of his appointments might not be a worthy one.

Posted by: mjg0 | July 16, 2010 6:13 PM | Report abuse


We're gunna change the world.....

Mike Stopa on 'The Darkness of Free Enterprise'

Posted by: shredderofmass1 | July 17, 2010 9:30 AM | Report abuse

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