Thursday, July 8, 2010

Berwick’s Recess Appointment

Obama’s decision to use his recess appointment powers to name Donald Berwick as head of Medicare and Medicaid Services has inspired the usual partisan bickering. Republicans say that Obama is abusing his appointment powers in an effort to sneak a policy of medical rationing past the American public. Democrats say that Republicans forced Obama’s hand with their irresponsible use of the senate filibuster. Take a step back from the partisan fray and ask yourself: is either side being civically irresponsible?

Jon Chait thinks neither side is (my emphasis):
“The best Republican defense of filibustering everything is: the rules are the rules. If the rules say you can filibuster whenever you want, then there's no reason not to filibuster every single thing. And that's fine. Likewise, the rules also say the administration can appoint officials to the executive branch without Congressional approval during a recess.

“If you're going to push the rules as far as they can go, you can hardly complain when the other party does the same thing. If Republicans think recess appointments are an abuse, they need to push to change the rules governing them. Same with the filibuster.”
Chait’s point is well-taken. It’s not that all is fair in love, war and presidential appointments. The fact that the formal rules governing senate filibusters and presidential appointments permit each side to do what it’s doing doesn’t mean that either side is being civically responsible. In a legitimate democracy, partisans have a civic obligation to adhere to generally recognized informal rules whenever their general observance facilitates giving each side a fair shot at governing according to its legitimate political preferences.

That doesn’t mean, however, that people on either side have a civic obligation to be chumps; their obligation to observe informal constraints on their partisanship only kicks in when they reasonably expect that their opponents will return the favor when the electoral tables turn. So Republicans pushing their filibuster rights to the limit are in no position to complain when Obama does the same thing with his recess appointment rights as a countermeasure.

Yet Chait’s leaving out something important when he says: “[i]f the rules say you can filibuster whenever you want, then there’s no reason not to filibuster every single thing.” Every partisan politician in a democratic system has to contend with voters’ evaluation of whether he's taken his partisanship too far. Sometimes politicians pay a steep price for running afoul of popular opinion in this respect. Remember what happened to Republicans in the 1998 mid-terms when the electorate thought they’d gone too far by impeaching Clinton? In a representative democracy, the most authoritative diagnosis of, and principal remedy for, partisan overreach is administered by the voters in the next election.

So it matters that Republicans want the voters to see them contesting the Berwick nomination while Democrats want to make their support for it invisible. Here’s Jake Tapper’s account of each side’s political motives:
“In announcing the recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services -- and two other nominees -- today President Obama said in a statement that ‘It’s unfortunate that at a time when our nation is facing enormous challenges, many in Congress have decided to delay critical nominations for political purposes.’ . . .

“But Republicans were not delaying or stalling Berwick’s nomination. Indeed, they were eager for his hearing, hoping to assail Berwick’s past statements about health care rationing and his praise for the British health care system. The nomination hasn’t been held up by Republicans in Congress and to say otherwise is misleading,’ said Sen. Chuck Grassley, R-Iowa, the ranking Republican on the Senate Finance Committee, which would have held Berwick’s hearing. Grassley said that he ‘requested that a hearing take place two weeks ago, before this recess.’  

“Berwick’s nomination was sent to the Senate in April, and his hearing had not been scheduled because he was participating in the “standard vetting process,” a Democratic aide on the Senate Finance Committee told ABC News. But speaking not for attribution, Democratic officials say that neither Senate Majority Leader Harry Reid, D-Nev., nor Sen. Max Baucus, D-Mont., the chair of the Senate Finance Committee, were eager for an ugly confirmation fight four months before the midterm elections.”
In a representative democracy, an aversion to transparency is pretty reliable evidence of a guilty civic conscience. That Republicans made a spectacle of impeaching Clinton shows that they were acting with a clear conscience; they didn’t know they were being civically irresponsible, until the voters told them in no uncertain terms in the next election that they’d violated generally recognized civic norms. That Democrats want to appoint Berwick under the radar suggests that their conscience isn't as clear.


Anonymous said...

No, you've got it wrong. The republicans are completely off on their berwick criticism, and only wanted to re-hash the healthcare bill. Once berwick is uncharged of CMS for a year they'll see that he's not the devil they think, and that he's performing cost-cutting measures they have wanted all along. He'll be confirmed in a year without any trouble. Thats the reason the recess appointment. Obama's not hiding anything - he just wants berwick to get to work ASAP

Ron Replogle said...


I'll grant that you're at least partly, and maybe entirely, right about Obama's motives. But Obama doesn't need to appoint Berwick to head CMS to make use of his expertise in administering the new health care regime--he could keep the post empty and let Berwick call the shots on big things in his capacity as a presidential adviser. Senate confirmation is a constitutional requirement of his formal appointment. That means that Obama needs a very good reason for circumventing the Senate. Administrative efficiency doesn't sound good enough to me. Evidently it doesn't sound good enough to Obama either or he'd make that argument himself.