Obama had to use the recces appointment to get Berwick in the first time. Now that Republicans are in a better position then they were before, it should not be much of a surprise that he is not going to make it through now.
"Senate Democrats have given up on confirming Don Berwick as CMS administrator in the wake of a letter from 42 Republican senators opposing the nomination, sources tell POLITICO.
Citing the GOP letter, a person familiar with the situation said Senate Democrats and the White House "can do the arithmetic" and now see that there's no way for Berwick to get the 60 votes needed to clear the Senate.
At a meeting with health care lobbyists Friday, Democratic Senate Finance Committee staffers indicated that the nomination is dead, that there will be no confirmation hearing, and that they'll soon be discussing "next steps" for CMS, sources said."