As one who generally believes that administrations should receive deference in their personnel selections, I found the recess appointment of Dr. Donald Berwick to be the administrator of the Centers for Medicare and Medicaid Services (CMS) disturbing. When the Obama administration came into office in January of 2009, it was no secret that an ambitious health-care overhaul was one of their top priorities. Once legislation of the magnitude they were planning passed, implementation of the new system became vital to making it work, and CMS, an enormously important agency with a budget larger than that of most countries, was going to be at the heart of that implementation process.
With this in mind, it was incumbent upon the administration to have a confirmed CMS administrator in place and ready to get started before any health-care legislation passed. The administration failed to do this. Instead, it waited until after the health-care bill passed in March to proceed. It waited in part because of fears that a confirmation battle would interfere with the health-care legislative battle, and in part because Dr. Berwick reportedly would only take the job if a health-care overhaul passed Congress.
Neither reason is satisfactory. If the White House feared that a controversial CMS pick would upset their legislative plans, it could have picked someone less controversial. If Dr. Berwick didn't want the job until and unless a bill passed, the administration should have told him that the president, not the nominee, gets to pick the timing.
Once the administration made the unwise decision to wait until after a bill passed to select the CMS head, the die was cast for a difficult confirmation. Even in the best of circumstances, confirmation processes take four to six months, and so the administration was looking at having a CMS administrator already behind on the implementation front. In addition, waiting for after the bill to make an appointment raised suspicions that the nominee might be a controversial one, leading the press and Senate staff to dig a little deeper than they might ordinarily have done.
Still, the Senate Democrats have a large majority, and confirmations are not typically filibustered, so Dr. Berwick might very well have been confirmed at the end of the day if the administration had let the process run its course. In this case, however, the administration chose to circumvent the process by electing to recess appoint Dr. Berwick, even as, according to the New York Times, "senators were still waiting for Dr. Berwick to submit responses to some of their requests for information," and before a committee hearing was even scheduled.
This is not the way things are supposed to work. An administration needs to put forward nominees in a timely way and let the Senate run its process, only resorting to a recess appointment if and when the process stalls.
The Bush administration's last CMS administrator, Kerry Weems, a well-regarded HHS career official, was never confirmed by the Senate, and was made acting administrator only after Weems went through a long and public Senate hearing and had completed his paperwork and follow-up questions. Bush administration officials could never quite determine what, if anything, was wrong with Weems's nomination, other than the fact that certain senators were determined not to confirm him. In Berwick's case, in contrast, his contentious statements are a matter of record, which is all the more reason that he should have had an opportunity to present his case in a public forum.
In this instance, the administration failed at their end of the confirmation process, and in doing so failed both Dr. Berwick and CMS. As a recess appointee, Dr. Berwick will lack the stature of a confirmed head, potentially making his relations with both the CMS staff and Congress more difficult than they need to be. As for CMS, its streak of going without a confirmed head since 2006 continues. Now that this unfortunate circumstance of unconfirmed CMS heads has gone on in both Republican and Democratic administrations, the CMS position will likely remain a political hot potato for the foreseeable future, which is an outcome the Obama administration could have avoided.