ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY: There are aspects of the health care law that have to be implemented on a timeline that I'm sure many who oppose Dr. Berwick for political reasons didn't want to see implemented. We are not going to have the viewpoints of a few hold up the law of the land.


SHANNON BREAM, GUEST HOST: That's the White House spokesman Robert Gibbs today talking about Dr. Donald Berwick who is now the subject of a recess appointment by President Obama to head up the centers for Medicare and Medicaid.

Also, we have someone to talk about that saying -- this is Max Baucus, the senator who heads up the finance committee. This would have been the committee that would have had the hearing had it gone through Dr. Berwick.

He said: "Senate confirmation of presidential appointees is an essential process provided by the Constitution that serves as a check on executive power." That is coming from a Democrat.

To talk about this, let's bring in our panel, Steve Hayes, senior writer for the Weekly Standard, also Kirsten Powers, columnist of The New York Post, and syndicated columnist Charles Krauthammer. Welcome to all of you.

Charles, let's start with you. Recess appointments, everybody does them.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: It is routine and it's done when you think your nominee is not going to make it. Here I think it was done for other reasons, but there is nothing illegal or underhanded about it. I just object that the language the administration used to defend it because it's entirely disingenuous as we shall explain in a minute.

BREAM: Kirsten, your take on this? The nomination hasn't been before the Senate for that long and a number of people on both sides of the aisle say we were just getting through the vetting process.

KIRSTEN POWERS, COLUMNIST, NEW YORK POST: I don't think the Democrats want to bring him up precisely because he will get in a huge debate over the health care policy, which Democrats don't want to do.

I'm a big fan of transparency. I like people to have the hearings. Democrats and Republicans do this, but it's an abuse of the recess process and it was an abuse when George Bush did it with John Bolton or whoever else because recess appointment were really supposed to be back in the day when they had long recesses and were gone for six or seven months and you couldn't leave anything open.

But let's face it -- they're in recess for two weeks, so it's not necessary.

BREAM: Steve, did he jump the gun and abuse the process?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: Of course it was. It's not just that they wanted to avoid a debate. I agree with Kirsten on that. It was they wanted to avoid a specific debate avoiding Berwick's ideas.

The thing he said in the past, the long list of the opposition research that the Republicans can and did produce about the kinds of things he advocated for single-payer health care plans consistently to making strong anti-market forces are precisely the kind of things that Republicans warned about for about a year during the actual health care debate, saying this was a step to socialize medicine and saying it would lead to single payer.

Here you've got somebody who is going to run an agency in the CMF that is going to oversee half a trillion dollars in cuts to Medicare and add 16 million people to Medicaid rolls and he made the arguments that the Republicans worried Democrats would make at the time.

BREAM: You all alluded to the politics of why the pick now. Let's have a couple of other quotes. This comes from President Obama in nominating him or actually appointing him about Dr. Berwick. He said, "It's unfortunate at a time when the nation is facing enormous challenges many in Congress have decided to delay critical nominations for political purposes."

On the other side of the aisle, Senator Barrasso said: "This appointment shows incredible arrogance on part of the president and it makes a mockery of his promise to run a transparent administration."

So, Charles, did he go ahead and make the appointment during a lazy time for here on Capitol Hill, the summertime, to avoid another debate of health care going to the midterm elections?

KRAUTHAMMER: The Democrats remember last summer of discontent when health care was all over the airwaves and it was in the town halls and Democrats got slaughtered on this. They went home and they realized this was extremely unpopular. In the end, they had to vote in favor of it earlier this year, and they are going to be heard in November.

The one thing the Democrats don't want is the issue raised again. When the president implies that this is a delay done by the Republicans who don't want the guy who will implement the bill, it is entirely false. The delay, Republicans want the hearing two weeks ago. The delay is the Democrats who don't want the issue on the air, as you say in a lazy summer, in the absence of other major issues, it will dominate the airwaves and revive the debate and will put all the Democrats who are going to go to reelection in November on the defensive.

So this is a Democratic delay, a Democratic maneuver. And it's because as Steve indicates the guy who was going to be nominated is in favor of all the sort of, the kinds of warnings Democrats have talked about in the past. He likes the British system. He wants to ration. That's where Obama-care is headed and that's why they didn't want any of the hearings.

BREAM: Kirsten, publicly at least, every Democratic strategist or person I talk to about the midterm says health care will be a big selling point for us. Remember, the more people understand about it the more they'll like it, it's actually a plus for us. Is that spin or do they really feel that way?

POWERS: I think a lot of people feel that way, but what is more important is what Charles brought up, highlighting some of the views that aren't particularly mainstream necessarily of the nominee.

Now, yes, OK, so he supports a single payer system. There is no single payer system in existence in this bill, so it's not as though he will cause a single payer system. But it highlights where President Obama theoretically is. We all know he does support a single payer system. And so in that sense it could be time for Republicans to make hay about what Democrats would like to do if they got in power.

BREAM: Steve, would he have the power to bring about some of the things that Kirsten says we don't currently have, could he take steps down the road?

HAYES: Yes. He is not an autocrat. He can't decide we'll just do these things.

But the momentum if Berwick, when he is in this position, will be in that direction. We know him. He has been public about what he advocated. I think the outrage goes beyond what Charles and Kirsten said. John Barrasso, who is a doctor, very mild-mannered, not someone prone to hyperbole, is very excited and worked up about this and says look, I was trying to get President Obama, I was calling for president Obama to put somebody, nominate somebody in the position in the middle of the health care debate and he refused to do so. Barrasso thinks it was done intentionally precisely to put in somebody with views of Donald Berwick who wouldn't have to withstand the kind of congressional scrutiny that we see had there been hearings.

BREAM: He escapes temporarily. Panel, thank you.

We know a lot of you are surfing the web while watching at home so log on to the home page Foxnews.com for Fox News exclusive about the surprising number of Afghan military members who have gone AWOL in the U.S. And when we return, we'll talk about immigration politics with our panel. Stay tuned.



GABRIELLE GIFFORDS, D-ARIZ. REPRESENTATIVE: My concern is that the federal government is suing the state of Arizona, ironically, over the ability to enforce immigration laws, where if the federal government had been doing its job over the years we wouldn't be in the situation in the first place.

LARRY SABATO, UNIVERSITY OF VIRGINIA: The reason why both parties are playing football with immigration is because their supporters in the stands are cheering. This plays to the base on both sides. It's red meat for the base.


BREAM: We're back with the panel to talk about immigration, politics of it and how it could play out in the midterm election. We've got Steve, Kirsten, and Charles to talk about it. Kirsten, ladies first this time. This issue of immigration, who benefits short-term if it's factored into the election and who benefits long-term?

POWERS: Maybe Republicans benefit short-term, and I'm not even sure of that. They absolutely lose long-term. The trends of the country are very clear, and I think alienating such a big block of people who vote, moving them from the swing category and into the Democrat category is not a great plan long-term.

Short-term it could provide a bump for them. It hasn't in the past. In the 2006 mid-term it was going to be the big issue that everyone would vote on and it came to nothing. I think now it's becoming more of an issue in certain states, but nationally I don't think you will see it playing out that much outside of the southwestern states.

BREAM: Let's look at a poll from the Fox opinion dynamics, a national poll about the Arizona's new immigration law. If you look at it by party, 73 percent of Republicans support it, 57 percent of independents support it, just 30 percent of Democrats support it. Who is going to be motivated to get out and vote, those for it or against it?

HAYES: Good question. I think, you know, it could be the case that the people who are opposed to it might be as enthusiastic to get out and try to block it as anybody else, or to try to express their views that it shouldn't be passed.

I think Kirsten's basically right about where this is going short-term and long-term. The one thing I would say is it depends to a certain extent on how Republicans talk about the issue. Republicans talk about the issue as a sort of basic, common sense, anti-Washington issue. Look, people who are coming here illegally by definition are illegal, they're breaking the law. People shouldn't break the law, end of discussion. That's the kind of argument that can appeal to independents and far beyond the Republican base. If they make the case that way, I think it has potential to really help them in the short term.

BREAM: You mentioned the language. That is interesting. They're talking with Marco Rubio, the Senate contender heading into the GOP primary down in Florida, a big race down there. He said at some point the GOP needs to change the language. It shouldn't be we're against illegal immigration but for legal immigration.

Charles, does it make sense to you?

KRAUTHAMMER: It does, but I think there is also another way to approach it, which is to say that the opposition to Arizona law or other law is going to curtail legal immigration and who wants comprehensive "reform" are disingenuous. Comprehensive is a code for amnesty.

The problem is that unless you close the border first, unless you have serious enforcement, which, as we see from Arizona and other states, people who live there know there is unserious enforcement. Nobody in the federal government is serious about it.

Until you have that, you have to suspend the issue of amnesty. Otherwise, you are going to be inviting half of Latin America and the rest of the world to enter the United States and ultimately enjoy another amnesty.

If you got a closure of the border, and it's not hard to do, it doesn't require high-tech stuff. It's done in other parts of the world. Then you would get a national consensus to legalize illegal immigrants here today. We are a humane society. We will do it. But not if it's an open imitation for more illegal immigration.

It seems to me that the Republicans ought to argue enforcement first and then a very generous open and humane solution for those already here.

BREAM: Kirsten, you mentioned how careful you have to be with the particular voting bloc. It is one of the fastest growing voting bloc, a long-term it could be an issue depending on how it plays with the poll.

Another poll we had that was interesting and I'd love your reaction. The Denver Post took a poll -- excuse me, they polled Colorado voters. Should Colorado pass a vote like Arizona and they break out Hispanics in favor of this at 62 percent. Surprising?

POWERS: It is, but the one thing I learned about the polls on immigration they're hard to read and they often contradict themselves. If you look at a lot of polls people will say, for example, are you in favor of the Arizona law? They say yes. Are you in favor of comprehensive reform, they say yes.

Are you in favor of deporting people? They say yes. They often contradict each other. I think it is because people are fed up and want something to be done and they are open to a lot of ideas. If you put different ideas in front of them, they'll tend to say yes.

BREAM: Steve, do we see much of this in the fall election?

HAYES: I actually don't think we will see as much immigration. I think the focus will be on the economy, to a certain extent national security issues. But I think the Arizona law and lawsuit is not likely to be in the news on a daily basis. To the extent we see it is because candidates themselves bring it up, particularly in swing districts where Republicans see they might have advantage over moderate Democrats.

BREAM: Thank you very much, panel.