The New York Times has an editorial today called “A Vacancy That Needs to Be Filled,” which blames Republicans for the departure of Don Berwick from the Centers for Medicare and Medicaid Services. According to the Times, “Senate Republicans need to put aside their rancor and obstructionism and confirm [Marilyn] Tavenner” to replace Berwick at CMS. This editorial is misguided on several fronts. While it is true that Republicans have criticized Berwick’s past statements and at least 42 of them still oppose his nomination, the primary fault for not getting him confirmed lies with the Obama administration and not the Republicans.

From the very beginning, the Obama administration mishandled Berwick’s confirmation process. First, the administration delayed for 18 months before naming him for CMS, waiting until after the passage of the Obama health bill to put his name forward. This delay stemmed from administration concerns about the various controversial statements Berwick had made over the years, statements that Avik Roy lays out in his NRO piece on the subject.

In addition, the 18-month delay meant that the Obama administration missed the window in which they had a 60-vote Senate majority that could have confirmed him. Furthermore, the Senate had not even scheduled a hearing on Berwick before the Obama administration recess-appointed him, irking the Democratic chairman of the Finance Committee, Max Baucus. At that time, Berwick had not even completed all of the necessary paperwork for Senate confirmation, and a Senate source has informed me that he still has not completed all of his paperwork. Regardless, once the Obama administration recess-appointed Berwick without a hearing, Berwick’s chances of ever getting confirmed plummeted.

As for Tavenner, I’m generally pro-confirmation for qualified and ethical people, even if I disagree with them ideologically. That said, it is the process that helps answer the questions about qualifications and ethics, so it is premature to be demanding her rapid confirmation, especially since Berwick has not even left CMS yet. Furthermore, according to my Senate source, the Senate has not formally been notified of her nomination, and the Finance Committee has yet to receive her paperwork, let alone give her a public hearing (or even schedule said hearing). Tavenner should at least begin the process before the Times starts demanding her confirmation. 

Finally, it is curious that the Times did not express this kind of urgency regarding the confirmation of the CMS director when the eminently qualified Kerry Weems sought and failed to obtain confirmation from the Democratic Senate during the latter years of the Bush administration. It is indeed a problem that CMS remains without a confirmed director since 2006, but it is inaccurate to lay the entire blame for the gamesmanship over this position on the GOP.