On July 19, the White House sent to the Senate the nomination of Donald Berwick to be the top administrator of Medicare and Medicaid. The move seemed odd, given that President Obama had already nominated Berwick once, and then on July 7 used executive authority to bypass lawmakers and unilaterally appoint Berwick to the post while the Senate was in recess. Whether lawmakers like it or not, Berwick has the job -- a powerful position made even more powerful by the passage of Obamacare -- until the end of 2011. So why resubmit his nomination to the Senate?
A White House spokesman did not respond to questions. But the renomination allows Obama to claim he wants to work with the Senate to win Berwick's confirmation, even though the recess appointment makes that superfluous.
It does one other thing: It keeps anger over the Berwick nomination and the recess appointment alive for months to come.
The Berwick affair has made an already polarized Senate more divided. Recently, North Carolina Democratic Sen. Kay Hagan tried to advance two judicial nominations for debate on the floor, a move that required Republican consent. She didn't get it. "Democrats didn't schedule so much as a committee hearing for Donald Berwick," Minority Leader Mitch McConnell reminded Hagan. "I am not inclined at this point to consent to the agreement proposed by my friend from North Carolina."
That is Senatespeak for: no way, no how.
"McConnell will be even less cooperative on nominations for the rest of the year," says one knowledgeable Republican. "That doesn't mean no nominees will move. It just means that people won't go out of their way to move them."
Republicans will also continue to push for answers to the many questions they have about Berwick. They still want to know more about his advocacy of healthcare rationing, his admiration for Britain's National Health Service and his inclination to trust the healthcare decisions of centralized planners more than individual doctors and patients.
Beyond that, the GOP is especially curious about a nonprofit organization that Berwick founded, the Institute for Healthcare Improvement. A 501(c)(3) tax-exempt organization, the institute reported receiving $12.2 million in contributions and grants, among other revenues, in 2008 (the most recent year for which figures are publicly available). Given all the money that has flown around in the healthcare debate, Republicans wanted to know where the $12.2 million came from. The recess appointment meant that Berwick didn't have to answer.
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The institute has also been good to Berwick personally. He received $2.3 million in compensation in 2008 (a figure that included retirement funds), and was paid $637,006 in 2007 and $585,008 in 2006. On top of that, investigators discovered a little-noticed paragraph in an audit report revealing that in 2003 the institute's board of directors gave Berwick and his wife health coverage "from retirement until death."
Millions of Americans worry about securing coverage and paying for it. Berwick, who advocates rationing for the masses, will never be one of them.
Now that the White House has renominated Berwick, there is technically nothing to prevent Senate Finance Committee Chairman Max Baucus, D-Mont., from holding a hearing on the nomination. On July 14, Republicans on the Finance Committee wrote a letter asking that he do just that, "so that the president's recess appointment does not result in circumventing the open public review that should take place for a nomination of such importance."
To no one's surprise, Baucus said no. While he conceded being "disappointed" by the recess appointment, Baucus stressed that "the committee needs to focus on the work before us." Apparently, that doesn't include Berwick.
Even without a hearing, Republicans will keep asking questions. An aide to Finance Committee member Sen. Pat Roberts, for example, says the Kansas senator "will send Berwick a letter asking the same questions he would have asked if a confirmation hearing had happened." Other GOP lawmakers will do the same.
The problem, as yet another aide says, is that Berwick "is under no pressure to answer without a committee vote looming. The nomination hearing was the best opportunity to learn about the nominee, and now it's gone."
Of course, there's one more possible solution. With Republicans showing surprising strength in Senate races in places like California, Wisconsin and Washington state, some are hoping for a GOP takeover in November. It's a long shot, but if it happens, Donald Berwick can plan on answering a lot of questions.
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