White House: President Forced to Make Recess Appointment of Medicare Chief But Not Aware If Obama Asked Senate for Hearing

By Fred Lucas | July 12, 2010 | 5:28 PM EDT

President Barack Obama (CNSNews.com/Penny Starr)

Washington (CNSNews.com) – President Barack Obama was forced to recess-appoint the controversial Dr. Donald Berwick to run Medicare and Medicaid and bypass a Senate confirmation hearing, according to White House Press Secretary Robert Gibbs. But Gibbs also said he was not aware of whether Obama asked the Senate committee for a hearing on Berwick.

Obama made the recess appointment on July 7. He nominated Berwick, a professor at Harvard Medical School, to be the administrator of the Center for Medicare and Medicaid Services (CMS) on April 19. Since that time, the Senate Finance Committee, with oversight of the nomination, held only 12 hearings.

Numerous controversial comments by Berwick have surfaced in which he praises Britain’s government-run National Health Service and advocates the rationing of care and the redistribution of wealth as part of a health care plan. These comments raised red flags among Republican senators on the committee, who wanted a hearing on Berwick, a process that is constitutionally required.

At Monday’s White House press briefing, during a back-and-forth with reporters, CNSNews.com asked Gibbs, “Did the president ever ask the chairman 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 then said a hearing was not the problem.

“This wasn’t an issue about a hearing,” Gibbs said. “The hearing wasn’t a problem. If there had been a hearing, he [Berwick] would have gotten out. Guess what, months and months and months would have passed before anybody would have consented to simply take up the nomination."

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.)

Gibbs also said it was important to have an administrator at CMS to implement the new $1 trillion health care overhaul that President Obama signed into law in March.

“We passed a law that has to be implemented by the first of the year and we are not going to wait for those in the Senate that want to see this delayed and delayed,” Gibbs said.

Obama made the recess appointment for Berwick while Congress was out for the July 4 holiday. 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.

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

Gibbs told another reporter on Monday, “On 21 occasions, unanimous consent was blocked in order and cloture had to be invoked in order to get somebody a vote."

White House Press Secretary Robert Gibbs (AP Photo)

Specifically, Gibbs referred to an un-named nominee who waited through 10 months of delays before being approved by a unanimous vote. Last week, in the same context, Gibbs had referred to Martha Johnson, administrator of the General Services Administration, as having 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.”

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.

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

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."