Senate Committee That Failed to Hold Confirmation Hearing for Obama's Medicare Czar Held Only 12 Hearings of Any Kind Between Obama's Nomination and Recess Appointment

By Fred Lucas | July 9, 2010 | 4:56 PM EDT

This undated handout provided by Goodman Media International, Inc., shows Donald Berwick. President Barack Obama is planning to appoint the head of Medicare and Medicaid without Senate hearings. Obama intends to use a so-called recess appointment to put Berwick in charge of the Centers for Medicare and Medicaid Services, a White House official said Tuesday night. (AP Photo/ Goodman Media International, Inc.)

( – The Democrat-controlled Senate Finance Committee, which had oversight over the confirmation of Dr. Donald Berwick to be the director of the Centers for Medicare and Medicaid Services (CMS), held only 12 hearings between the day that President Barack Obama sent Berwick's nomination to the Senate and the day Obama gave Berwick a recess appointment, bypassing the Senate confirmation process.
Despite the relatively few hearings it held during the period, the committee never scheduled a confirmation hearing for Berwick.

The committee is chaired by Sen. Max Baucus, a Montana Democrat, and the full Senate is controlled by the Democrats, who have a 59-to-41 seat majority, counting Sen. Joe Lieberman, an Independent from Connecticut, and Sen. Bernard Sanders, an Independent from Vermont, who caucus with the Democrats. The scheduling of a confirmation hearing and vote on Berwick's nomination was in Sen. Baucus's discretion, and the scheduling of a Senate floor vote on the nomination was in the discretion of Senate Majority Leader Harry Reid (D.-Nev.).

The 12 hearings the Finance Committee held during the time Berwick's nomination was pending dealt with 
such matters as trade restrictions under the Burmese Freedom and Democracy Act, America’s trade relationship with China and the confirmation of lower-level executive branch appointments. 
Obama sent Berwick's nomination to the Senate on April 19 and gave Berwick a recess appointement on Wednesday, July 7. As director of CMS, Berwick will play a major role in the implementation of the new federal law to revamp the U.S. health-care system, an industry that comprises about one-sixth of the economy.
“As ranking member of the committee of jurisdiction, I requested that a hearing take place two weeks ago, before this [July 4th week] recess,” Sen. Charles Grassley (R-Iowa) said after Obama announced the recess appointment for Berwick.
Because Obama made the recess appointment while Congress was out for the July 4 holiday, the Democrat-controlled 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.
But under the express 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.
Berwick has praised the National Health Service (NHS), the government-run, single-payer health care system in Great Britain, and said that rationing is inevitable when taxpayers are paying for health care. 

Speaking at Wembley stadium on July 1, 2008, at an event commemorating the 60th anniversary of the NHS, 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.”

In a June 2009 interview with Biotechnology Healtcare, 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 decisio all the tim. The decision is not whether or not we will ration care--the decision is whether we will ration with our eyes open."

Sen. Max Baucus (D-Mont.), chairman of the Senate Finance Committee.

Nevertheless, Baucus expressed disappointment that Obama made the recess appointment. 
“I'm troubled that, rather than going through the standard nomination process, Dr. Berwick was recess appointed,” Baucus said in a July 7 statement after the announced recess appointment. “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.”
Erin Shields, the majority spokeswoman for the Finance Committee, could not be reached for comment on Friday by telephone or e-mail.  
Grassley’s spokeswoman, Jill Kozney, referred to the ranking member’s previous statement that he asked for a hearing to be held before the July 4 recess. She referred questions about why a hearing was not held to the committee chairman’s office.
One day after Obama announced the nomination (on Apr. 19) of Berwick, the Finance Committee held a hearing on “The President’s Proposed Fee on Financial Institutions Regarding TARP.” A follow-up hearing was held on May 4. A third hearing on this issue was held on May 11.
On May 13, the committee held a confirmation hearing for Alan D. Bersin, of California, to be commissioner of Customs at the Department of Homeland Security. Obama made his nomination last September.
The full committee did not meet again until May 25, according to the Senate Web site, for a hearing on “Reducing Overpayments and Increasing Quality in the Unemployment System.”

President Obama -- who took only two questions from foreign journalists at the press conference -- said he has asked the Justice Department to examine the Arizona immigration law for possible civil rights violations. ( Starr)

The next day, the full committee held a confirmation hearing on Joshua Gotbaum, who was nominated last November to be director of the Pension Benefit Guaranty Corporation.
That same day the committee held a hearing for Richard Sorian, nominated last October by Obama to be the assistant secretary for public affairs at the Department of Health and Human Services.
On May 27, the committee held an “open executive session” to consider the nomination of Sherry Glied to be assistant secretary for planning and evaluation for the Department of Health and Human Services. Obama made her nomination in May 2009.
The next full committee hearing was held on June 10, which was followed by a June 23 hearing, both on U.S. relations with China.
On June 30, the full committee met to consider Senate Joint Resolution 29, approving the renewal of important restrictions contained in the Burmese Freedom and Democracy Act of 2003.
That same day, the committee also favorably reported the nomination of Francisco J. Sanchez, of Florida, to be undersecretary of the Department of Commerce for International Trade. Obama made that nomination in April 2009. 
The committee also favorably reported Sorian for the HHS post at that hearing.
As of Friday, one other hearing wass scheduled, for July 14, on “The Future of Individual Tax Rates: Effects on Economic Growth Redistribution.”