Today the President is recess appointing Dr. Donald Berwick to serve as Administrator of CMS, the Centers for Medicare and Medicaid Services. CMS is responsible for administering more than $740 B of spending each year and will be key to implementing the new health care laws. This is a very important job.

Dr. Berwick runs a foundation, the Institute for Healthcare Improvement. Senate Finance Committee Chairman Baucus and Senator Grassley have for some time been asking Dr. Berwick to disclose the list of donors to his foundation. In the eleven weeks since he was nominated he has not yet done so.

Recess appointments are not quite routine, but they are Constitutional and are an ugly reality of how things sometimes work in Washington. Yet the timing and manner of Dr. Berwick’s recess appointment are clear process fouls by the Obama Administration. In this case the President is using the recess appointment power not to work around a filibuster as claimed, but to avoid disclosing information that is potentially relevant to Dr. Berwick’s service, to avoid an unpleasant reprise of the health care debate, and because it’s convenient for the Administration.

In a recess appointment the President bypasses the normal Senate confirmation process and appoints someone to a position within the Executive Branch. The President can do this only when the Senate is in recess – that is, not in session. The person appointed can serve until the end of the next session of Congress. In Dr. Berwick’s case, this means he can serve as CMS Administrator through the end of 2011. Technically, the President could then again reappoint Dr. Berwick for 2012-2013, but Berwick would have to be unpaid for that second stint. I don’t know of a second unpaid second recess appointment ever happening.

The Senate confirmation process usually works like this:

  • The President nominates you for a senior position in the Executive Branch that is Senate-confirmed. In the Executive Branch this is called a PAS slot, short for Presidential Appointment, Senate confirmed.
  • The staff of the Senate committee of jurisdiction (in Dr. Berwick’s case, the Senate Finance Committee) interview you. You have to disclose your finances, taxes, and fill out a bunch of questionnaires. This process can be both laborious and grueling.
  • The Committee then holds a nomination hearing at which you testify and answer questions. The timing of the hearing is determined by the committee chairman (in this case, Senator Baucus).
  • If you don’t foul up too badly at your hearing, sometime later the Committee members vote on your nomination. Again, the time of the vote is determined by the committee chairman. In most cases a majority of the committee will vote to report your nomination favorably to the full Senate.
  • Your nomination then automatically goes onto the Senate’s Executive Calendar.
  • Sometime later, the Senate Majority Leader (Reid) moves to proceed to your nomination. Usually the motion to proceed is adopted without delay, and the Senate is then debating your nomination.
  • If you’re controversial, the question of your nomination can be filibustered. The Leader would need 60 votes to invoke cloture to end the filibuster.
  • If cloture is invoked or if your nomination is not filibustered, after some debate the Senate then votes on your nomination.
  • If a majority of the Senate votes favorably, you have then been confirmed by the Senate.
  • You are then sworn in by an Executive Branch official and can begin work.

A recess appointment usually occurs when a nomination is very important to the President and is supported by a majority of the Senate, an impassioned minority fiercely opposes the nominee, and the majority lacks 60 votes to invoke cloture to overcome the minority’s filibuster.

Typically the above process will play out up to the point where the majority leader tries to invoke cloture and is blocked by the minority. Sometimes he’ll make the minority block cloture more than once to test their cohesion.

Then, having followed the regular confirmation process but having been stymied by a determined Senate minority, the President will recess appoint the nominee. To do this the President must have a cooperative majority party, because the tradition is that the Senate has to recess for more than three days for the recess appointment to be valid. If Republicans were in the majority now, they would technically recess for only one or two days at a time to prevent recess appointments. Senate Democrats did this in 2007-2008 to President Bush. If Republicans retake the Senate majority next year I would expect them to do the same to President Obama.

In the past recess appointments have been used after an actual filibuster. In this case the President is using a recess appointment to avoid the threat of a potential filibuster. Doing so also allows the nominee to avoid answering an uncomfortable question about his foundation’s funding sources. It also allows the Administration to duck a reprise of the health care reform debate four months before Election Day.

The Berwick recess appointment is extraordinary because the confirmation process didn’t even begin and because Republicans cannot be held responsible for the delay. In the eleven weeks since the nomination Chairman Baucus never held a hearing on Dr. Berwick. While some Senate Republicans threatened a future filibuster, no Senate Republican has yet had an opportunity to delay or block the confirmation process so far.

No member of the Finance Committee had any opportunity to question Dr. Berwick on either his fitness as a nominee or on his policy views.

The Senate Finance Committee therefore never voted on the Berwick nomination. It was never placed on the Executive Calendar. Leader Reid never tried to call up the nomination, and never gave Senate Republicans the opportunity to debate, vote upon, or carry through on their threatened filibuster.

Team Obama blames Republicans for forcing the President to use a recess appointment. Here’s White House Communications Director Dan Pfeiffer:

In April, President Obama nominated Dr. Donald Berwick to serve as Administrator of the Centers for Medicare and Medicaid Services (CMS). Many Republicans in Congress have made it clear in recent weeks that they were going to stall the nomination as long as they could, solely to score political points.

But with the agency facing new responsibilities to protect seniors’ care under the Affordable Care Act, there’s no time to waste with Washington game-playing. That’s why tomorrow the President will use a recess appointment to put Dr. Berwick at the agency’s helm and provide strong leadership for the Medicare program without delay.

This would be a valid argument if Senate Republicans had actually filibustered the nomination, rather than merely threatening to filibuster it. Mr. Pfeiffer’s argument is not a reason for a recess appointment, it’s a rationalization for bypassing the confirmation process.

Yes, everyone anticipated significant Republican resistance to the Berwick nomination. Yes, everyone anticipated that some Republicans would filibuster the nomination. But this entire process never had a chance to play out, and that is a crucial process foul on the part of the President.

In anticipation of some of the counterarguments, I’ll end with some Q&A.

Attack: Why do you oppose the Berwick confirmation? He’s well-qualified.

Response: I’m not arguing against his confirmation. I’m arguing that he should go through the confirmation process. If he is successfully filibustered, then the President can recess appoint him. I might oppose his nomination, or I might be OK with it. I need more information, which now I’ll never get. More importantly, many Senators are in the same position.

Attack: Everyone knows the Republicans will filibuster him. Why bother going through with that process? This is faster.

Response 1: All delay so far is not the fault of Senate Republicans.
Response 2: Whether or not his nomination is filibustered, the committee process should not be skipped. Nominees should have to answer the committee’s questions and appear at a confirmation hearing.
Response 3: It is impossible to know if such a filibuster would succeed. Filibuster threats are easy to make and occur all the time. Actual filibusters are a little harder.
Response 4: The Senate has a constitutional role in the confirmation of senior Executive Branch employees. This should be bypassed only in extraordinary cases, and not just because a few Senators told the press they would filibuster.

Attack: Health care reform is too important. We need Berwick in place now.

Response: Then you should have had him answer the committee’s question about his foundation’s funding sources, and you should have pressured the Democratic Committee Chairman to begin the confirmation process instead of waiting for 11+ weeks. All delays up to this point are because (a) the nominee refused to answer bipartisan questions from the Committee Chair and Ranking Member, and (b) Chairman Baucus refused to schedule a hearing.

Attack: If Republicans didn’t filibuster everything the President wouldn’t have to do this.

Response 1: Republicans don’t filibuster everything.
Response 2: Even when they do filibuster, it’s important to make them go through that process. Force them to explain why this nominee is so egregious that the Senate should not even vote up-or-down on the President’s nominee. That’s an unpleasant debate, but it’s better that it occur than not.
Response 3: Believe it or not, sometimes Senators change their minds after they have had an opportunity to question a nominee they previously opposed. Yes, even some Republicans.
Response 4: A process foul like this makes it easier for Senate Republican Leaders to argue to rank-and-file Senate Republicans that they are an aggrieved minority. Whether or not you believe this is a process foul, this argument strengthens the ability of Senate Republican leaders to mount future filibusters. This is an unintended consequence that may hurt some of President Obama’s future nominees.

(photo credit: striatic)