It’s not just Elizabeth Warren. It’s Don Berwick, and others too

Paul Krugman has a nice op-ed today about Elizabeth Warren. Among other things, he writes:

Given Ms. Warren’s prescience and her role in shaping financial reform legislation — not to mention her effective performance running the Congressional panel exercising oversight over federal financial bailouts — it was only natural that she be appointed to get the new consumer protection agency up and running. And it’s hard to think of anyone better qualified to head the agency once it goes into action.

The fact that she’s so well qualified is, of course, the reason she’s being attacked so fiercely. Nothing could be worse, from the point of view of bankers and the politicians who serve them, than to have consumers protected by someone who knows what she’s doing and has the personal credibility to stand up to pressure.

The interesting question now is whether the Obama administration will see the war on Elizabeth Warren for what it is: a second chance to change public perceptions.

Change a few references from consumer to patient, and everything Krugman wrote about Elizabeth Warren is true of Donald Berwick, another highly-qualified official who seems unable to even receive a Senate confirmation hearing. Like Warren, he faces a partisan witch hunt. Also like Warren, he offers a nice opportunity to highlight Republicans’ unreasoning opposition to obviously sensible provisions and obviously qualified people they can identify with health reform.

Indeed the only real difference between Warren and Berwick is that the latter is the more technocratic, quintessentially nonpartisan figure. He is possibly the most qualified person in the nation to shephard implementation of the new law. His resume and views are quite similar to those of some Republican counterparts, who may someday face the same rough handling from Senate Democrats as payback for what is happening to Berwick.

Kicking such excellent people to the curb terribly damages American government. Of course, the Senate’s confirmation process is seriously broken. Yet the problem goes beyond the Senate’s ossified structures. Some of the blame must go to President Obama himself, and to Democratic Senators who fail to aggressively oppose partisan attacks on so many people.

According to news reports, Senate Finance chair Max Baucus may not even grant Berwick the courtesy of a hearing. Baucus is apparently miffed that Berwick received a recess appointment last year. Baucus shouldn’t be. Opponents of health care reform demonized Berwick immediately following the bill’s passage. Facing a virtually-inevitable filibuster while trying to implement one of the most complicated laws in American history, Obama gave Berwick a recess appointment. This wasn’t the ideal process, but it was the proper response to bluntly partisan abuses of the Senate confirmation process. Other Democrats across official Washington are sorry about Berwick’s troubles, but they speak of Berwick as a bureaucratic dead man walking. That only deepens his predicament.

We should fight for good people like Warren and Berwick. Maybe Republicans have the Senate votes to block them. We need to make Repubicans pay a price for that, however it goes.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect,, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

27 thoughts on “It’s not just Elizabeth Warren. It’s Don Berwick, and others too”

  1. I don’t see how anyone can witness this spectacle, and not recognize that Obama and most of the Senate Democrats are playing for the plutocracy. The Republicans won’t pay a political price, because their constituents and supporters actively want bad government. And, the Democrats won’t pay a political price for their connivance, because their constituents are afraid of delivering the government completely into the hands of some comically right-wing nutjobs. It’s classic good cop, bad cop, and we, the People, are being played.

  2. If Baucus’s colleague Jon Tester and enough other Dem incumbents lose their Senate seats next year, costing them the majority and costing Baucus his treasured committee chairmanship, it will be because Dems chose not to take credit for building a stronger health care system. He and the other Dems will have only themselves to blame.

  3. So, you’re a proponent of the imperial Presidency, and figure that the power of the legislative branch, (Such as to confirm or reject nominees…) should all be transferred to the Executive? Look, as a constitutional matter, the Senate is entitled to a say over Presidential nominations. They’re entitled to reject them, if they so decide.

    And here the President is, resorting to recess appointments with a Senate of his own party, without even going through the motions of trying to get Senate approval first. Hardly shocking when the Senate responds with it’s usual “That nominee is dead to us.”, the normal consequence of a non-emergency recess appointment. Stiffing another branch of government has consequences, it’s supposed to have consequences. I’d go so far as to say that separation of powers RELIES ON it having consequences.

    Unless maybe you regret that we’re not a dictatorship.

  4. So fun to watch Brett turn on a dime. If the situation here were reversed he’d be complaining about the Senate not following process properly.

    A refusal to hold a hearing is, in fact, not properly a rejection of the nominee — let’s have the hearings and get the votes on the record.

  5. Unless you can show evidence that I supported Republican recess appointments, I’d say that you’re basing that “turn on a dime” remark on nothing but your assumption that somebody who disagrees with you on one thing must disagree with you on all things.

    My consistent position on recess appointments is that the President, as a matter of inter-branch courtesy, (But NOT constitutional law, so I’ve even proposed an amendment on the subject.) is entitled to a reasonably prompt up/down vote on his nominees. But absolutely not entitled to have them confirmed. For instance.

    Indeed, let’s have the hearings, and get the votes on the record. Oh, wait, Obama has deliberately avoided that, just because it might not have been an automatic win, which is what Harold is defending. Obama, not the Senate, decided that there wouldn’t be hearings.

  6. “Oh, wait, Obama has deliberately avoided that”

    Is that not simply an out-and-out lie by Brett? Obama nominated Berwick; Berwick was denied hearings and a vote; Obama recess-appointed him; Congress is back, and could hold hearings and a vote if it wanted.

    What am I missing?

  7. Yes, it is an out-and-out lie.

    [i]Unless you can show evidence that I supported Republican recess appointments[/i]

    I’m not talking about recess appointments, I’m talking about the Senate refusing to hold hearings on a president’s nominees. If this were a Republican president and Democratic Senate, you’d be complaining about the Senate refusing to do their job and hold hearings and votes. Because the parties are reversed, you aren’t. Quite simple.

  8. “What am I missing?”

    That it’s the President’s own party refusing to hold hearings?

  9. The Dems control the Senate, they determine the hearing schedule, so the progressive’s bellyache that there were no hearings is a complaint against…themselves! Fact is, Obama maneuvered these recess appointments (Warren isn’t even a recess appointment, she is a czar named to a “position” that doesn’t require confirmation) because he knows these folks are far enough beyond the mainstream that they would not be confirmed. You’re right, the confirmation process is broken, but it’s the Dems who broke it. They don’t call it Borking for nothing.

    Beginnning in January 2013, when the GOP controls the Senate, then you can complain when you can’t get a hearing.

  10. “I’m not talking about recess appointments, I’m talking about the Senate refusing to hold hearings on a president’s nominees. If this were a Republican president and Democratic Senate, you’d be complaining about the Senate refusing to do their job and hold hearings and votes. Because the parties are reversed, you aren’t. Quite simple.”

    The parties aren’t reversed. In both cases you’d be talking about a Democratic Senate refusing to do their job.

    My position is fairly straightforward: As a matter of inter-branch courtesy, the Senate should promptly act on Presidential nominations. That prompt action might sometimes consist of decisively rejecting them, but it should happen. Just as, again as a matter of inter-branch courtesy, the President should either sign or veto legislation sent him, instead of using it to light the Presidential fireplace.

    As a matter of constitutional law, of course, the Senate is perfectly entitled to ignore Presidential nominations. I have more than once proposed that we enact a constitutional amendment to change this, so that nominations would be automatically confirmed if not promptly rejected. But that’s not the Constitution we have now.

    I didn’t think that the Republican Senate should ignore Clinton’s nominations. I thought they should vote them down.

  11. The chance that Obama will fight for Warren is, I think, close to zero. I thnk he will be more than happy to see her nomination fail. Anyone here remember Dawn Johnsen?

  12. When the Mainstream involves ‘President’ McCain on the Sunday talks more than any Senator in the majority party, I think you mean ‘propaganda mainstream’ rather than actual mainstream.

  13. It would be nice if there were some facts attached to the opinions being expressed here. It would be useful for people to know, for example, that:

    1) Warren has not been nominated to be head of the Consumer Financial Protection Bureau. Its’ unlikely that anyone will be nominated until July, when the new agency is set up. See

    2) Warren is currently in a temporary position where she’s tasked with setting up the Bureau. That job doesn’t require Senate consent.

    3) The job of Director of the Bureau will require Senate consent. But no one has been nominated yet. Therefore, no one is holding up hearings.

  14. Bloix,

    You went three for three. I would add that Warren’s job was dreamed up and is offensive from the standpoint that she is clearly a stalking horse for the eventual Director and the position was created to sidestep the Senate. Nothing new there. This gang has shown its contempt for the process before to reach its ends, and they will continue to do so.

    By the way, she hasn’t done a bad job. But that doesn’t justify the process either.

  15. The confirmation process is absurd. What’s an executive that can’t fill its offices? What on earth’s the constitutional point to requiring Senate confirmation for the Ambassador to Kazakhstan and the Surgeon-General? Cabinet officers and Supremes, then basta.

  16. “That it’s the President’s own party refusing to hold hearings?”

    Which is irrelevant to the claim that “Obama has deliberately avoided that” and “Obama, not the Senate, decided that there wouldn’t be hearings.”

    Obama nominated Berwick on April 19, 2010, at which point his nomination was in front of the Senate and amenable to a vote. Thus, Obama did not in fact try to avoid having his nomination voted upon, directly contrary to your claim.

    The Senate decided there would not be hearings. The fact that the Democrats control the Senate (and didn’t allow a vote) doesn’t render it not the Senate that decided that there would not be hearings.

    Both claims, then, are outright lies.

  17. But why is the President’s own party refusing to hold hearings? Are they just cranky? Do they just not like the President and his nominees? Or might there be an “elephant” in the room?

    The issue that Brett and Redwave72 are carefully not talking about when they blame Senate Democrats is the *reason* Senate Democrats are not scheduling hearings and floor votes. That reason, of course, is that the minority has promised to filibuster these nominees to prevent an up-or-down vote. How do I know that? Well, among other things, the speed with which nominees like Janet Yellen and Sarah Raskin were confirmed *once a deal was struck to ensure the minority would not filibuster* is very, very telling.

    Claiming that the problems of the appointment process are due to Senate Democrats when those Democrats are merely rationally responding to the incentives generated by Republican filibusters (i.e. spend committee hearings and floor time on activities they find more productive than tilting at the appointment windmill) is naive at best and intentionally deceptive at worst. I can certainly understand (though not agree with, at least for the previous Congress) people who feel that the Senate should have been spending its time on fixing the appointments process rather than on legislation. There’s more than one rational response to Republican nominee filibusters, after all. Nevertheless, stripping the appointments situation of its underlying context is just a way to obscure the real issues.

  18. Glad to see all the apologists and nitpickers out in full force. The fact is that a competent administrator is needed. But politics means we’ll end up with some body tolerably incompetent. It seems pennywise and pound foolish to me to be complaining that Democrats broke the confirmation process, when it was the GOP that broke the corporate governance system that landed us in this pile of manure to begin with. And then they keep going on about Social Security when everybody knows the first demon through the door will be healthcare. We can’t pay twice as much for identical or worse outcomes forever. The Republicans claim to support a free market, but they’re not about to open up the medical labor market to compete on the world market, like they did with the blue and white collars. So, cry me a river, Brett. I won’t have trust in the Senate without some GOP heads on poles.

  19. Well, Brett also believes (I presume based on consistency) that the various agencies they are meant to head up are unconstitutional. The inability to fill them is OK, I suppose.

    In addition, even if they were constitutional, they would be adding one more layer to “The Leviathan”, and thus a bad idea. From a man who argued that it’s not constitutional for the US to run a poison control center in New York without the NY State’s explicit approval.

  20. Hey, what can I say? I think the US Constitution has serious problems. It’s just I’d like to see them fixed, rather than lied about. That just gives you a constitution with serious problems, being implemented by liars.

  21. If the outcome of the hearings is fore-ordained (filibuster) and we’re pretty sure that the Village isn’t going to pay attention (look! an intoxicated celebrity) then the only person paying the price is the nominee, who has to spend a week in prep and another week listening to fact-free verbal abuse mixed with questions that alternately terrify with their ignorance and their malevolent cynicism.

  22. I think Brett has made his points clearly and consistently. He’s certainly correct, as far as Constitutional process, and its shortcomings, are concerned.

    The point of unsettled controversy is over who is to blame for the partisan bickering and/or gridlock. Political tribalism is being provoked by the way these appointments have been handled. Why?

    I don’t see any reason to believe Obama actually wants any of these good folks in office. Yeah, I know, he appointed them. But, he hasn’t managed to get them confirmed in a Senate controlled by his own party.

    Obama is playing for the other team.

  23. Frankly, why SHOULD he, from his own perspective, bother to get them confirmed? Is not being confirmed preventing them from exercising the powers of the offices he granted them? No. Is a Senate of his own party likely to impose significant retribution on him for circumventing it’s institutional prerogatives? No.

    From his point of view, Senate approval of nominees is entirely pointless. It gets him nothing except for an opportunity for people to criticize his appointees, and the possibility that the Senate might actually reject the appointee. Which wouldn’t actually, you know, stop him from giving them the positions anyway, but it would look a little bad.

    Really, what reason has he got for bothering with having the Senate approve his appointments, except for some abstract interest in upholding the Constitution? Which abstract interest I think he’s entirely devoid of.

    No, he does actually want those folks in office, and they ARE in office, lack of Senate approval not withstanding.

    Furthermore, the idea that Obama is “playing for the other team” is flatly absurd, if by the other team you mean Republicans. You think these are appointments Republicans approve of?

    He’s playing for the same team he’s played for all his life, a team of one called “Obama”.

  24. “playing for the other team” means playing for the corporate plutocracy, as I indicated in my first comment.

    I honestly do not see how you cannot gaze upon the partisan back-and-forth that the alleged hang-ups of these nominations occasion, and not realize that the political drama that ensues is itself an object desired by Obama. In the case of Warren, Obama has clearly threaded the needle, obtaining the fierce partisan loyalty of folks, whose policy desires have been frustrated thoroughly by his Administration. This is a general pattern, reflects Obama’s function in our politics, which is to prevent the formation of an effective oppostion to takeover of the government by banksters and plutocrats.

    I don’t think most Republicans care much, one way or the other, who is appointed to office. They showed little interest in governing when their man was President, and even less now. On their good days, they are a clown show, and on bad, a wrecking crew.

    A responsible, working Congress, interested in the exercise of power, has little need to reject nominations. It handles them expeditiously. But, then, so does a responsible Administration, which this — it is increasingly clear — is not. Congressional control of the purse strings, in days past, ensured that cabinet officials treated their supervising subcommittees as the equivalent of a board of directors. Few currently serving Members, of either Party, would have the slightest idea of how to structure an appropriation in a way that brought government officials to heel. That institutional knowledge began to erode, with the weakening of the Chairpersons during the twilight of the Democratic majority in the 1970s, and went completely out the window, when Gingrich came in. The 2007-8 Congress couldn’t get Bush to respect its subpoena power; why should we be surprised when Obama abuses the appointment process to put on a little drama for the suckers in the cheap seats?

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