Obama's cynical recess appointment of Donald Berwick

[Updated below on July 9 at 5:50 p.m.]

As a matter of policy, President Obama's nomination of Donald Berwick to oversee Medicare and Medicaid was inspired: Berwick, co-founder of the Institute for Healthcare Improvement, is the country's leading evangelist for the proposition that it is possible to deliver higher quality medical care at a lower cost. He's not only preached that gospel; he's shown that it can be translated into reality.



As a matter of politics, the president's choice of Berwick was, well, the polite word would be bold. The less polite word: boneheaded. Administration officials argue that Republicans would have seized on any nominee as an opportunity to re-litigate the health-care debate. But Berwick offered opponents a loaded gun with his talk about rationing, his discussion of health reform as a matter of redistributing wealth, and his effusive praise for the British system. If the president wanted to buy a fight like this, he ought to have been better prepared to wage it.



And as a matter of good government, the president's move to snub the Senate and install Berwick by recess appointment was outrageous. Using -- more accurately, abusing -- this mechanism to make appointments during a Senate recess is a bipartisan temptation. All presidents succumb, and Obama is facing a more implacably recalcitrant Senate minority. Yet the original purpose of recess appointments was to let government function during the long stretches with Congress away, but that's water under the constitutional bridge.



A recess appointment should be a last step in cases of egregious delay, not one of the first. That standard was nowhere near met in Berwick's case. Berwick was nominated to be administrator of the Centers for Medicare and Medicaid Services (CMS) on April 19, less than three months ago. He had not yet had a hearing. His committee vetting wasn't complete.



In short, Berwick is no Dawn Johnsen.



Johnsen was Obama's choice to head the Justice Department's Office of Legal Counsel -- like CMS administrator, one of those government jobs as important as it is obscure. Like Berwick, Johnsen could not have been more qualified. She was chosen even before the inauguration. The Senate Judiciary Committee held hearings in Feb., 2009. It approved her nomination in March.



And then... nothing. Because the Senate failed to act before ending the 2009 session, the president had to nominate her a second time. Finally, 14 months into the proces, Johnsen's nomination was withdrawn. A recess appointment -- if Obama wanted to take the political heat -- would have been entirely justified in her case.



Not in Berwick's.



As Montana Democrat Max Baucus, the chairman of the Senate Finance Committee, said after Obama's precipitous action, the confirmation process "serves as a check on executive power and protects... all Americans by ensuring that crucial questions are asked of the nominee -- and answered." Bypassing the process also harms the nominee, undercutting his legitimacy and truncating the time he has to act. Berwick can only serve until Dec., 2011, a short opportunity to make a big difference.



There are legitimate explanations for Berwick's more incendiary comments on health care. It's too bad he didn't get to offer them. A cynic -- who, me? -- might think that the administration simply preferred not to suffer the political downside of a public airing.



A cynic might wonder, with Arkansas Democrat Blanche Lincoln facing a tough re-election fight, whether Berwick could even get through committee on a party-line vote. A cynic might think that the last thing Senate Majority Leader Harry Reid wanted before the election was a floor fight about rationing health care.



A cynic might look at the White House explanation -- that it was urgent for CMS, without a confirmed administrator since 2006, to have a leader -- and ask: Then why did you dither for 15 months before nominating someone?



In announcing the appointment, the president complained that "many in Congress have decided to delay critical nominations for political purposes." True, but where's the evidence of delay in Berwick's case? You can't fairly accuse the other side of political gamesmanship when you short-circuit the process and storm off the court before the first set.



"To some degree, he's damaged goods," then-Sen. Barack Obama said in 2005 about John Bolton's recess appointment as United Nations ambassador.



Would the president say the same about Berwick?

UPDATE, July 9, 5:05 p.m.: A few people have asked whether I'm being hypocritcal in criticizing Obama's recess appointment of Berwick when my husband received a recess appointment from George W. Bush. It won't surprise you to hear me say that I don't think there's any inconsistency, but here's why:

My husband, Jon Leibowitz, is a Democrat who is now (having been selected by President Obama) chairman of the Federal Trade Commission. He was originally nominated to be an FTC commissioner by President Bush. (The FTC is an independent agency with five commissioners of both parties; when a Republican president is in office, Democrats recommend their choice for nominee and the president submits the nomination, as happened in Jon's case.)

Jon was nominated in April 2004. He was recess appointed in September -- 146 days later. His nomination was not controversial in any way, with Democrats or with Republicans. At the time of the recess appointment, he -- unlike Dr. Berwick -- already had had a hearing and was on the verge of being approved by the committee. The only reason for the holdup -- and the consequent recess appointment -- involved one senator's concern about another nominee, to be FTC chairman, with whom Jon's nomination was linked. The president, who wanted to get that nominee in place, reached out to the Democratic leadership to see if there was a problem with recess appointing Jon at the same time, and he was told it would not be an issue. In other words, where Berwick's recess appointment was, as I wrote, a "snub" to the Senate, Jon's wasn't. He was subsequently unanimously approved by the committee and by the full Senate -- as was, by the way, the nominee for the chairmanship.

So, both Berwick and Leibowitz received recess appointments, but the situations are different. If my argument were that all recess appointments are outrageous, I would be guilty of hypocrisy in denouncing Berwick's while accepting my husband's. But my position is that recess appointments are justified in some circumstances, and might have ultimately been justified in Berwick's case. But not when the nomination has been pending for such a short time and before a hearing has been held.