Mikulski Says Senators Will Question Berwick at 'Confirmation Hearings'--Despite His Recess Appointment

By Nicholas Ballasy | July 15, 2010 | 3:55 PM EDT

Sen. Barbara Mikulski (D-Md.) (Photo courtesy of Mikulski's Web site)

(CNSNews.com) – Democratic Sen. Barbara Mikulski of Maryland said Wednesday that senators will ask Dr. Donald Berwick whether he intends to follow the recently enacted health-care law as "we go through the confirmation hearings" for him.

Berwick, in fact, never had a confirmation hearing in the Senate Finance Committee, which had oversight over his nomination to be administrator of the Centers for Medicare and Medicaid Services.  President Barack Obama bypassed the Senate confirmation process entirely, giving Berwick a recess appointment last week before the committee could act on his nomination.

On Capitol Hill on Wednesday, CNSNews.com asked Senator Mikulski: “On July 1, 2008, in a speech commemorating the 60th anniversary of Britain’s single-payer health-care system, Dr. Donald Berwick, President Obama’s recess-appointee to run Medicare and Medicaid said quote: ‘Any health care funding plan that is just, equitable, civilized and humane must--must--redistribute wealth from the richer among us to the poorer and the less fortunate.’ Do you agree with that or disagree with that?”
Mikulski responded: “Well, rather than looking at the quotes of Dr. Berwick, I’m going to look at what the health reform bill is. I believe that any appointment of President Obama is not about his personal opinions, it’s about him following the law. And as we go through the confirmation hearings, we’ll say, ‘Dr. Berwick, you know what the law is, do you intend to follow it?’”

President Obama sent Berwick's nomination to the Senate on April 19. On July 7, when senators were out town for the July 4 holiday, President Obama gave Berwick a recess appointment, bypassing the Senate confirmation process.

Sen. Max Baucus, the Montana Democrat who chairs the Senate Finance Committee that had oversight over Berwick's appointment, publicly expressed his displeasure at the president's move to circumvent the normal constitutional process of senatorial advice and consent. 

In a statement issued on the same day that President Obama made the recess appointment, Baucus said: “I'm troubled that, rather than going through the standard nomination process, Dr. Berwick was recess appointed. Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee--and answered.’’

Following CNSNews.com's Wednesday, July 14, video interview with Mikulski in which she said senators would question Berwick during his confirmation process, CNSNews.com asked Mikulski’s press secretary, Rachel MacKnight, what the senator meant. The press secretary provided CNSNews.com with an excerpt from a July 14 Roll Call news story about Republicans on the Senate Finance Committee calling for confirmation hearings on the recess-appointed Dr. Berwick. 

President Barack Obama speaks about exports, jobs, and the economy on Wednesday, July 7, 2010, in the East Room of the White House. (AP Photo/Pablo Martinez Monsivais)

“Republicans on the Senate Finance Committee are asking Chairman Max Baucus (D-Mont.) to hold a hearing to consider President Barack Obama’s recess appointment of Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services,” the excerpt read.
CNSNews.com then asked MacKnight, “Is Sen. Mikulski therefore supporting the Republicans on the Finance Committee's call for confirmation hearings on Berwick?”
MacKnight said she was providing “additional information, not a position.”
CNSNews.com then asked if Senator Mikulski was aware that Berwick had been given a recess appointment before her interview with CNSNews.com. MacKnight said the senator “is aware it’s a recess appointment.”

Under the language of Article 2, Section 2, Clause 3 of the Constitution, Berwick’s recess appointment must “expire by the end of the next session.” This means Berwick must leave office by the end of 2011 unless the Senate puts him through the constitutionally required confirmation process before then.