Public Hearing Would Have Made Obama’s ‘Health Care Rationing Czar’ ‘Unconfirmable,’ GOP Senator Says

By Fred Lucas | July 14, 2010 | 6:44 PM EDT

Dr. Donald Berwick, nominated by President Obama to head the Centers for Medicare and Medicaid Services, is expected to get the job through a recess appointment on Wednesday, July 7, 2010. (AP Photo/Goodman Media International, Inc.)

Washington ( – President Barack Obama never asked the Senate for a hearing on his nominee to run Medicare and Medicaid, Dr. Donald Berwick, as far as White House Press Secretary Robert Gibbs knows.

Berwick was nominated on Apr. 19, and with no confirmation hearing scheduled, Obama recess-appointed him on July 7 when Congress was out of town for its July 4 vacation.

Obama made the recess appointment because a public confirmation hearing in the Senate would have made Berwick -- who has openly advocated the redistribution of wealth as part of a health care plan --  “unconfirmable,” said Sen. John Barrasso (R-Wyo.).

“It makes me wonder if the administration is trying to hide something, and also makes you believe that this nominee – once his positions became known to the American people – would be unconfirmable,” Barrasso told during a conference call on Wednesday. “But now the president has what he wanted. What he wanted is a health care rationing czar. And that’s what he has.”

Speaking at Wembley stadium on July 1, 2008, at an event commemorating the 60th anniversary of Britain’s National Health Service, Berwick said, “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. Excellent health care is by definition redistributional. Britain, you chose well.” An article based on this speech was published in the July 26, 2008 British Medical Journal (BMJ).

In a June 2009 interview with Biotechnology Healthcare,  Berwick said: “We can make a sensible social decision and say, 'Well, at this point, to have access to a particular additional benefit [new drug or medical intervention] is so expensive that our taxpayers have better use for those funds.' We make those decisions all the time. The decision is not whether or not we will ration care--the decision is whether we will ration with our eyes open."

Gibbs, thus far, has not responded to questions about Berwick’s remarks, and did not answer a question about whether Obama agrees with Berwick.

White House Press Secretary Robert Gibbs briefs reporters at the White House on Monday, Dec. 7, 2009. (AP Photo/Charles Dharapak)

Senate Finance Committee Chairman Max Baucus (D-Mont.) also was critical last week, saying: “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.”

At Monday’s White House press briefing, during a back-and-forth with reporters, asked Gibbs, “Did the president ever ask the chairman [Baucus]  for a hearing?”

Gibbs answered, “Not that I’m aware.”

Then, Human Events reporter John Gizzi asked, “Excuse me, Robert, how can you complain then about the process when the president --?”

Gibbs replied, “Because, as I said, this wasn’t a hearing. This wasn’t an issue about a hearing.”

“This is your latest attempt to decide that the process was being upheld because there hadn’t been a hearing scheduled,” Gibbs said. “The hearing wasn’t a problem, right? If there would have been a hearing, he [Berwick] would have gotten out. And guess what? Months and months and months would have passed before anybody would have consented to simply taking up the nomination.”

“Now, we passed a law -- health care, Affordable Care Act -- that has to be implemented,” said Gibbs. "There are things that have to be implemented by the first of the year per the law. We are not going to wait for those in the Senate that want to see this delayed and delayed and delayed before – before this is taken up.”

Barrasso, one of only two medical doctors in the Senate, said Republicans wanted a hearing and a vote on this nominee.

Sen. John Barrasso (R-Wy.) told the Senate Committee on Environment and Public Works on Thursday that cap and trade legislation may be a boon to organized crime in the United States. (Penny Starr/

“Medicare and Medicaid are going to disburse over $800 billion in benefits this year,” Barrasso told “It is larger than the economies of many nations. This is a position that deserved a hearing. This is a position that deserved a vote.”

Berwick, a professor at Harvard Medical School, was nominated on Apr. 19 but since that time, the Senate Finance Committee, with oversight of the nomination, held only 12 hearings.

With a recess appointment, the Democrat-controlled Senate Finance Committee no longer needs to hold a confirmation hearing on Berwick before the November elections and Senate Majority Leader Harry Reid (D-Nev.) does not need to schedule a vote on the nomination this year.

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 in the intervening time.

Gibbs has cited Martha Johnson, administrator of the General Services Administration, as an example of Republican stonewalling because she waited 10 months before confirmation.

“We’ve had plenty of nominees that have had hearings that wait months and months and months before the Senate would be allowed to take it up,” Gibbs said. “When I say allowed to take it up -- simply getting unanimous consent to have a debate to have a vote. Sometimes, after 10 months of waiting, that unanimous consent is gotten and the approval of the nominee is unanimous.”