appointment of Donald Berwick to be the head of Medicare and Medicaid is not your typical recess appointment, a finesse presidents occasionally resort to because they can’t get their nominee confirmed by the Senate. In fact, the Democrats had the votes to confirm Berwick barring a Republican filibuster, and in any case they had the votes to get him approved in committee. Why then the pre-emptive recess appointment before committee hearings were even held? John Podhoretz has two interesting
. First, Obama is a natural dictator and bully. Second,
Dodging a health-care fight
On Tuesday, the Obama ad ministration decided to do something rather peculiar, somewhat shocking and politically fascinating: It circumvented the process by which the Senate advises and consents on executive-branch nominees.
The move, which seems unprecedented in subtle but important ways, promises increased chaos in Washington—but also hope on health care.
President Obama wants a distinguished doctor named Donald Berwick to head up the office that administers Medicare and Medicaid—two of the most expensive programs in the federal government. Ordinarily, the nomination would have gone through the process known as “confirmation,” with a hearing before the Senate Finance Committee followed by a full vote of all 99 senators. (One seat is vacant due to the death of West Virginia’s Robert Byrd.)
Instead, Obama decided to invoke his constitutional authority to appoint Berwick (and two other officials of lesser moment) to his post without having to be confirmed by the Senate. This is possible only when Congress is not in session, as is the case right now, and it’s called a “recess appointment.” It is designed to be temporary; it is valid only until that session of the Congress adjourns, which in this case will come at year’s end.
Past presidents have resorted to recess appointments when they believe a nominee’s appointment has been subjected to unjust political and ideological gamesmanship. And the White House said it was resorting to the recess appointment because of Republican recalcitrance.
“Many Republicans in Congress have made it clear in recent weeks that they were going to stall the nomination as long as they could, solely to score political points,” Communications Director Dan Pfeiffer said on the White House blog Tuesday.
That was astoundingly untrue. The only way Republicans, who have 41 votes in the Senate compared to 58 for the Democrats, could have “stalled” the nomination would have been to organize a filibuster, and that would happen only when the nomination came to the Senate floor.
They couldn’t have blocked a favorable vote on Berwick’s nomination from the Senate Finance Committee, which has 13 Democrats and 10 Republicans.
As ABC’s Jake Tapper reported yesterday, “Republicans were not delaying or stalling Berwick’s nomination. Indeed, they were eager for his hearing, hoping to assail Berwick’s past statements about health-care rationing and his praise for the British health-care system.”
Democrats in charge of the Senate could have scheduled hearings at any time since the administration sent his nomination to the Capitol in April. But, Tapper reported, “neither Senate Majority Leader Harry Reid (D-Nev.) nor Sen. Max Baucus (D-Mont.), the chair of the Senate Finance Committee, were eager” to hold them.
That’s what makes the administration’s decision unprecedented in my nearly 30 years of closely following politics: I can’t recall a preemptive decision to make a recess appointment absent a controversy, ugly political battle or contentious confirmation hearing.
And that’s especially true when there’s no indication there will be an effort to filibuster, which Democrats would likely have been able to override. (Berwick’s credentials as a Harvard muckety-muck would have given the two Maine Republican moderate senators more than enough leeway to let him pass.)
So what’s going on here?
First, it appears Obama likes to muscle things through. It makes him feel like he’s cutting through the nonsense and getting things done.
This unorthodox and questionable move is of a piece with his administration’s bullying of Chrysler creditors last year—insisting, in contravention of eight centuries of common law, that the contracts those creditors signed with Chrysler should simply be ignored so as to get the United Auto Workers the deal it wanted.
But procedure, precedent and tradition exist for good reason; ignoring and undermining them blazes a path to political disorder.
Second, this is as glaring an admission as there is that Obama and his people know they’ve lost the public on health care. Rather than using these hearings to bolster popular support for the landmark legislation they rammed through in the spring, they can’t bear to submit to public questioning about it.
By running away from this fight, Obama is signaling that the possibility of repealing the health-care monstrosity before it really begins to sink its teeth into the American system by 2014 is very real indeed.