Berwick Recess Appointment Part of a ‘Fundamentally Broken’ System

BY Jason Kane  August 11, 2011 at 5:09 PM EDT

Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images

Dr. Donald M. Berwick. It’s a name as likely to incite a political brawl in Washington as it is to attract a blank stare almost anywhere else.

But if most Americans haven’t heard much about the man who now oversees two of the nation’s biggest entitlement programs — Medicare and Medicaid — it’s in part due to the political fight surrounding his appointment.

President Obama slipped Berwick into the post when most lawmakers were out of town last summer. Called a recess appointment, the move allows a president to unilaterally appoint a senior federal officer to a post without the typical Senate approval process — allowing them to serve until the end of the next congressional term. At the end of the temporary term, they must either be approved by the Senate or replaced.

For Berwick, that meant the man charged with laying much of the groundwork for health care reform and cementing the president’s vision for the law into Washington’s institutional framework avoided the political gridlock that often accompanies the normal process.

Berwick’s appointment provoked the immediate wrath of some Republicans, who accuse the Centers for Medicare and Medicaid Services chief of being an advocate of rationing care and supporting a “bureaucratic” health care system similar to Great Britain’s. But the heat surrounding his nomination says as much about the political theater framing most of today’s recess appointments as about Berwick himself — a life-long ideas man whose policy approach to driving down costs and putting patients at the center of the health care experience was acclaimed by leaders of both parties before he became associated with health care reform.

As happens so frequently in today’s presidential appointment process, Berwick became a symbol for a much wider political discussion, and standing against him became synonymous with opposition to the health care reform law.

Virtually any nominee in his position would have faced a similar battle, presidential appointment scholars agree.

“So the president could have nominated someone else but the situation probably would have been the same,” said Calvin Mackenzie, a professor of government at Colby College and author of “Innocent Until Nominated: The Breakdown of the Presidential Appointments Process.” “President Obama essentially said to the Senate, ‘OK, if you want to play that game, I’ll play mine.’”

The maneuver meant Berwick could remain in office for a year and a half — enough time to have a considerable impact at the Centers for Medicare & Medicaid Services. But because the opposition and symbolism tied to him are unlikely to shift by the time his recess appointment expires at the end of the current congressional session, Berwick is working against a ticking clock.

Contentious recess appointments are certainly nothing new. The Senate exploded with outrage when George Washington appointed John Rutledge to be the second Supreme Court chief justice despite his inflammatory views on a treaty with Britain. John F. Kennedy dodged the ire of southern segregationists when he appointed Thurgood Marshall to a federal bench while Congress was away. And President Clinton made James Hormel the first openly gay ambassador through a recess appointment to dodge some steep opposition to his candidacy.

The political maneuver was originally meant to help the president maintain government when Congress was out of session for nine to 10-month stretches.

But that simplistic use of the recess appointment was established before political gridlock stifled all but the most basic movement in Washington. These days, Republican and Democratic presidents alike lean heavily upon the drama-free — if often temporary — appointments to fill critical roles in their administrations.

If they don’t, their candidates often remain in political limbo for months on end. In the first year and a half of his term, President Obama failed to fill a quarter of his top-level policy positions — largely due to fierce Republican opposition to many of them.

Under current rules, it doesn’t take much for that opposition to translate into a complete bureaucratic standstill. A single senator can put a hold on an up-or-down vote for an appointee no matter what the reason. And if 40 of them band together — enough for a filibuster — the recess appointee is assured failure.

Republicans have taken it one step further this summer by making sure the entire recess appointment process is off the table. The vast majority of lawmakers have returned to their home districts for the rest of August, but a handful from neighboring states are making the trek to the Capitol every three days to pound the gavel and conduct “business” for about a minute. It’s all in the name of ensuring Congress never officially goes into recess and the president can’t slide any nominees like Berwick into important jobs. This isn’t the first time the tactic has been deployed – Sen. Majority Leader Harry Reid did the same thing to President George W. Bush in 2007.

The entire process is “a national disgrace,” Mackenzie said. “I wish we could start over and have a completely different process. It’s a system that nobody in their right mind would have designed and it makes it extremely difficult for a president to staff an administration.”

Below, Mackenzie answers our questions about how the process works and where it’s headed.

Why do recess appointments — and the associated drama — seem to be on the upswing?

Because the entire process is fundamentally broken. It just doesn’t work. Imagine you are the CEO of a company that was specifically hired for your vision. Then as soon as you start to pick your executive vice presidents, the board tells you, ‘We forgot to mention that we fundamentally disagree with everything you believe. And we’ll need to approve your team before they can start work.’ That’s just the way this process is set up. So if you’re the president trying to do the business of government, are you going to sit there with all these vacancies or fill them with plan B? Well, plan B is a recess appointment.

Are they fundamentally detrimental to the political process or just an annoyance?

It’s detrimental because we don’t have anyone holding that position. What those senators are saying is not that they think this guy is unfit by some character flaw, because they’re inexperienced or because he broke the law. They just disagree with his views on policy. The message is: If you send us anyone who holds those views, we’re not going to confirm him. And under the system where one senator can place a hold on a nomination, it’s just a very inviting process for a politician to make a statement that has very little to do with whether the nominee is qualified to hold that job.

How bad is this process for the agencies these appointees are supposed to be running?

It’s a terrible thing, because it’s a lousy way to run a railroad, to have constant turnover. The turnover among presidential appointments is bad enough. But there’s also a disincentive of good people to allow themselves to be appointed. If you’ve just read in the morning paper about this poor guy who’s been an important, terrific person his entire life but he’s being abused and picked apart by the Senate, you ask why you would want to put yourself through that. The accumulation of nastiness makes it very hard to get good people in the government.

Is there any easy fix?

Something I’ve said many times in the last 35 years that I’ve been writing on this subject is that the Senate should just give these nominees a straight up-or-down vote. But that’s never going to happen. Delay is a terrific weapon for the minority and they’re going to hold on to that till doomsday.

Is there any hope things will reverse themselves?

This just keeps getting worse, in part because our politics has become uglier in a lot of ways. But also because we pass fewer laws than we used to and there’s so little other business of consequence. Where does a politically oriented member of Congress find a way to assert himself or herself? The appointment process is very inviting.