Orin Kerr writes in defense of stare decisis and I agree with his argument but it brought me to the question I present in the title.

As Al Franken might say, 'are the words stare decisis in the Constitution?' The answer is no. But a common law Judicial Branch IS in the Constitution. I would argue that the Constitution did indeed envision the principle of stare decisis. Which puts me in my mind of this article arguing that Justice Souter was one of our great common law Supreme Court Justices.

This is an Open Thread.

Too funny. The cast for the upcoming season of Dancing With the Stars was announced today. Making the cut: Former Congressman Tom DeLay.

DWTS will feature its first politician — former Congressman Tom DeLay— on the season's Sept. 21 (8 ET/PT) premiere. DeLay, 62, served as House Majority leader until he was forced to step down following a 2005 Texas grand jury indictment on money laundering charges. Known as "the Hammer" for his dealing with political opponents, the polarizing Republican's legal woes remain unresolved.

"I really am a big fan of the show," says DeLay, an open supporter of Sara Evans when the country singer competed in Season 3. "I couldn't believe they asked me to do this. It didn't take me five minutes to agree. I've been working out like crazy."

I wonder if Rod Blagojevich applied. [More...]

Via FDL:

What that means is no public option means no health care reform. Whether Ezra Klein likes that or not, that's the reality that Obama needs to deal with.

Speaking for me only

The Supreme Court today ordered a new evidentiary hearing for Troy Davis. The Court directed the District Court in Georgia to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.”

ScotusBlog reports here. The court order is here (pdf.) The dissenting opinon by Justices Scalia and Thomas is here (pdf). [More...]

Ezra Klein:

The question has never been whether the White House supports the public option. It's whether Congress -- and, in particular, the Senate -- has the votes to pass it. Sebelius's statement this week does not change the administration's position. But it is being widely reported because it comes in context of the sagging popularity of health-care reform, and the changing conventional wisdom on the legislative politics. Namely, many think it increasingly likely that the White House will have to compromise on the public option because it will not be able to find sufficient votes in the Senate and is growing more desperate for a deal. That may or may not be true, but that's the actual story here. Blowing up Sebelius's comments is just a backdoor way of getting at it.

(Emphasis supplied.) My gawd. The timing here, like most everything in life, is of course the issue. We are nearing endgame in the bargaining on health care reform and having Sebelius say what she did on the Sunday morning shows NOW is of course the issue. Is Ezra pretending he does not know that? But let's face it, Ezra has been acting as a tool for the Obama Administration on this issue all year. It's one thing to not care about the public option and Ezra really never has. That's fine. But stop pretending that this is nothing. You just look foolish.

Speaking for me only

During the Cold War, Richard Nixon employed what was known as the Madman Theory. It posited that demonstrating a willingness to consider "madness" in action would provide you with negotiating leverage. It is not much different than any negotiating strategy really in that a party may demonstrate that it is willing to scorch the rhetorical Earth in order to gain concessions from your negotiation opponents. George Bush and Republicans often employed the "madman" theory of negotiations with Democrats. The "nuclear option" was coined as a result of the similarity to Nixon's strategies. And the use of the reconciliation process was key to the GOP negotiating strategy. Of course there was no controversy among the GOP and the Media regarding the GOP's use of these tactics. But Democrats handwring over it. Kevin Drum writes:

Jane at Firedoglake crunches the numbers and says there will be no health care bill without a public option. Why? She says the numbers show: Republicans aren't voting for the bill; the Dems can pass it with 218, but if they lose 40 Dems, it's dead. And, she says,

57 Democrats who signed the July 30 letter saying that they "simply cannot vote" for a bill that "at minimum" does not have a public plan (PDF).  There are 7 more not listed on the letter who have pledged to vote against any bill that does not have a robust public plan.  That makes 64 Democrats who won't vote for the "co-ops" that both Kathleen Sibelius and Robert Gibbs say the White House is "open" to.  

Do the math:  257 - 64 = 193.  They need 218 to pass the bill.

A commenter pretending to be Matt Yglesias responds:"Jane -- Denouncing a bill without the public option is counterproductive."[More...]

BTD's post about Kathleen Sebelius and the Obama Administration's apparent capitulation on the Public Option is full. Here's another place you can continue the discussion.

Is anyone watching the season premiere of Mad Men? 41,000 have signed up to watch on Facebook so they can discuss it at the same time. I'm watching Big Brother 11, it's just getting interesting now that the worst jerks are gone. CBS kicked Chima off the show yesterday for violating the rules, so everything is up in the air.

ABC has a new show called Shark Tank where people with an idea for a business but no capital appear before five self-made millionaires to ask for a loan. The millionaires ask them questions and either opt out or offer them money in exchange for giant percentages of the business. It's not bad, as the millionaires are all quirky characters with some interesting views on money. ("Don't cry over money, it will never cry for you."

This is an open thread, all topics welcome.

Zach Lahn got a lot of attention yesterday for his question to President Obama in Grand Junction about how private insurance companies could possibly compete against a Government non-profit, and his cocky attitude, shouting out and play to the media.

He failed to disclose he was a staffer for one of Colorado's most right-wing Republicans in the State legislature. (He's taken his Linked-In profile down.) As Colorado Pols says,

It also takes some "chutzpah" to fail to disclose to either the President or to reporters interviewing you afterward that you're a staffer for one of the hardest-right Republicans in the Colorado Senate, Sen. Greg "Obama's Gonna Take Yer Guns" Brophy, wouldn't you say? It's not like that should have disqualified him from asking the question--much like the infamous Brooks Brothers riot of Florida 2000 legend, though, it would have helped explain why he was so, um, "passionate."

[More...]

Yesterday at the anniversary concert: [More...]

Wrapping up President Obama's visit to Grand Junction yesterday:

• Photos of the protest signs

• While Obama was at the health care forum, Michelle Obama and their daughters toured High Country Orchards, famous for its peaches, in nearby Palisade. (You can order online, or buy them at Whole Foods and some King Soopers stores.)

• Both the Grand Junction Police Department and Mesa County Sheriff's Office assisted with security for the President's visit. The police department estimates it cost them $3,000 to $5,000 and the Sheriff's office puts its tab around $5,000 to $10,000. Both agencies said it was an honor to assist the Secret Service and will not seek reimbursement from the feds. There were no arrests.

From the comments, Obama HHS Secretary Kathleen Sebelius capitulates on public option:

Health and Human Services Secretary Kathleen Sebelius said the White House would be open to co-ops instead of a government-run public option, a sign Democrats want a compromise so they can declare a victory on the must-win showdown. "I think there will be a competitor to private insurers," she said. "That's really the essential part, is you don't turn over the whole new marketplace to private insurance companies and trust them to do the right thing. We need some choices, we need some competition."

Surrendering without a shot fired. Maybe this is part of some super secret plan for the 11 dimensional chess game that only Obama seems capable of playing.

Speaking for me only