Wednesday, November 26, 2008

The virtue of gratitude

A few years ago, I wrote a Thanksgiving Day column for the Milwaukee Journal Sentinel. It got a good response. My favorite came from one my former partners (now an adjunct at Marquette University Law School) who is a former naval officer. He told me that, on Thanksgiving, he orders his family to listen while he reads it to them.

I doubt that is true, but, if you know the man, the image is priceless and, for those of us who were litigators at Foley & Lardner during the eighties and nineties, evocative of many warm memories.

In any event, I reprise the column each Thanksgiving. Think of it as my low rent version of "Yes, Virginia, there is a Santa Claus."

The virtue of gratitude
By Rick Esenberg

Cross posted at Marquette University Faculty Blog.

Posted: Nov. 23, 2005
Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gew├╝rtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is

Shark on the air

If you are in Racine, I am on WRJN as we speak. 1400 AM.

Tuesday, November 25, 2008

No New Deal Again

Long time, no blog. There are so many things going on. But I think I must add my small voice to the bailout mania.


Although Bush 43 has been portrayed by some on the left as a type of ur-conservative, he was never that. He did cut taxes but restraining spending was never very important to him. The creation of large slush funds to bail out whoever has the political capital to stake a claim seems wildly wrongheaded.

Perhaps Obama, to the disgust of the netroots, won't continue this policy. So far, his appointments in the economic area, in sharp contradiction to his campaign rhetoric, seem largely in line with the Reagan consensus.

But then there is this is this talk of a two year recovery plan and massive infusions of government cash into the economy as if passing money through Washington somehow creates value that was not there before it passed go at the Potomac. This hasn't worked in the past and seems unlikely to work now.

Thursday, November 20, 2008

Prayers for General Mukasey

I am in Washington for the Federalist Society's annual Lawyer's convention. Tonight, in the midst of a thoughtful speech about the successes of the Bush administration in fighting the war on terror, the hyperbole regarding the administration's legal positions on certain aspects of the response to terror and the dangers inherent in post hoc attempts to criminalize what were, at worst, disputed legal positions, Attorney General Michael Mukasey collapsed. He is in my prayers tonight and, I hope, yours.

Greetings from the District

I'm blogging tonight from our nation's capitol, but I am still locked on to what's going on back home.

There's not much to say about the controversy regarding the Dan Shelley article in Milwaukee magazine. It strikes me as, at best, hyperventilation over the uninteresting and, at worst, wrong headed. Talk radio tends to come from a certain perspective. On the right, folks like Sykes and Belling and, on the left, people such as McNally and whoever hosts on what's left of Air America, are candid about their bias. Bias is not a weakness, it is a fact. We have them. We deal with them better when we acknowledge them.

If I know someone is a conservative or liberal, then I can assess their comments in light of that. On the local scene, I think that, for example, Sykes and Von are hosts with a perspective but who conduct themselves in a way that make them worth listening to. There are others as well.

This doesn't mean that you can't mine their shows and find objectionable things that they have said. Let someone talk enough (including me) and that will happen.

This doesn't mean that I think that all talk show hosts, including the locals, conduct themselves honorably. It's ok to talk politics in an entertaining way, but one should always remember that it is serious business and our country is not a cartoon made up of heroes and villians.

Monday, November 17, 2008

OK, don't touch that dial, but ...

Before I leave the topic of the nature of political discourse (something that I have a great interest in), I think I have one more post in me.

Discourse, in my view, can only occur between people who believe that the other side is worth listening to. I certainly understand - and even appreciate - a bit of sharp riposte. Nor do I deny that the reality of politics affects the propensity of (and language with which) we are willing to dump on people on our side of the tracks.

But if you really think that your side has a monopoly on intelligence, moral character and honesty, you are unlikely to say anything worth listening to. One of the ways to guard against this, I think, is to try to understand (and to assume that others will understand) the argument to which you are responding. As I am sure I have blogged before, I encourage students to do that because I think this is the most effective starting point.

The key, it seems to me, is whether you try to do that and not whether you are just as quick to criticize folks on your side of the study hall or whether you use all of the same adjectives.

But I also know that some people read blogs for affirmation. Local bloggers like this guy (who I pick on because I think he could do better)have no interest in responding to folks on the other side because he doesn't think there is anything worth responding to. But if you want an adjective-laden example of a white guy playing the dozens on conservatives, it's there for you.

It's there that the rhetoric can get overheated and people can get mislead about the nature of the other side. If you're main purpose is to entertain people who already agree with you, then some exaggeration is required and, really, is OK.

Still, there is a line there. And a need to remember that when we exaggerate to get a laugh, we're still exaggerating. If you come to believe - really believe - hat conservatives have no soul and that liberals hate their country, you need to rethink things.

Wednesday, November 12, 2008

You're not dialing it down

Tuesday's post questioning the notion that there is no monopoly on - or even a disproportionate tendency toward - anger and vitriol on the right as opposed to the left has gotten a fair amount of response. There are three things that strike me.

First, there is a fair amount of emphasis on what I understand to be very intemperate remarks by a local conservative blogger on election eve. I can't comment on them because I didn't see them. I have now read Peter DiGuadio's explanation of his comments and it is overwrought. I am not going to pretend that I don't think Obama was a poor choice for President. But his victory is hardly the end of the American Experience. While I know that people do get overwrought in the aftermath of an election into which they have poured so much of themselves, President-elect Obama is my President even if I do expect to disagree with a good deal of what he does.

Since I took an academic position I have far less time to read blogs than I'd like. Right now, I probably read more local left blogs than blogs on the right (I tend to try to catch up on some of the latter in periodic sweeps) because I want to know where there might be an interesting subject for debate. This isn't necessarily the way I want it but its the way it is. If, as one commenter suggests, there should be a father figure on the right who keeps the brothers and sisters in line (and who, I wonder, would that be on the left), it's not going to be me.

Another theme was to take me to task for suggesting that Charlie Sykes is a reasonable guy. As I have said before, talk radio is not a faculty workshop. It's entertainment and, because it is, there needs to be a certain vibrancy that can get in the away of a perfectly detached and neutral conversation. Within the confines of the medium, I think that Charlie does a fairly good job of maintaining a civilized discourse. Notwithstanding Dan Shelley's rather underwhelming piece in Milwaukee Magazine, I think that important things get discussed on talk radio and, on some shows, get discussed in a fairly informative way.

The third thing I noticed was the depth of the investment in the idea of moral superiority. I do not claim that there is a "hate left" stronger than the "hate right." That's a contest that I think isn't worth having. Human nature is such that we can expect abuse - and reason - from both sides. I can tick off bunches of people in this town on the left and the right for whom I have the greatest degree of respect and who I regard to be honest, intelligent and fascinating. Someday I'd like to see them all get together for conversation - perhaps even fueled, Mr. Brawler, {you might even be invited), by Oregon Pinot Noir and even, truth be known, some French varietals.

Tuesday, November 11, 2008

Dial it down

I am sure that Dave Begel does not remember me, but I have a fond recollection of him. Back when I was but a young lawyer, I was a member of the defense trial team in the metropolitan Milwaukee school desegregation case (this was a case that wanted to extend some form of mandatory racial balancing throughout the metro area, not just in MPS). The case was of substantial public interest and Judge Curran decided to allow the press to sit in the jury box (there were so many lawyers - 12 to 27 on any given day - that the normal spectator section had to be removed).

I was cross examining (actually eviscerating, if I so say so myself) one of the experts (it was this guy) for MPS (who wanted the 4 county busing)and momentarily could not locate one of my exhibits. Begel handed it to me. A young lawyer appreciates that type of thing.

But I can't agree with the notion - advanced by Begel and others (and more civilly by him) - that last week's election marked some type of defeat for "angry" talk radio. It wasn't a good night for conservatives, but this stereotype of talk radio as "angry" and "divisive" and "against everything" is tired. Listen to Joel McNally's morning show (or read his Shepherd Express column) and tell me that he doesn't take the position - at least for public consumption - that his political opponents are moral or intellectual defectives. Try reading this guy's blog. You won't find that kind of vituperative self-righteousness in many other places.

I understand that Belling's schtick is outrage, but Sykes and Wagner are hardly breathing fire. We have embarrassments like G. Gordon Liddy and Michael Savage. The left has Randi Rhodes and Keith Olbermann.

It's one thing to claim victory. It's another to claim moral superiority.

Religous freedom - or oppression?

The BBC reports that a group in the UK called the Centre for Social Cohesion has issued a report finding that European governments have not done enough to protect the free speech of Muslims from other Muslims.

According to the report, Muslim reformers have not been sufficiently protected from attacks by Muslim extremists, citing as a prime example (but it offers many others) the fatwah against Sir Salman Rushdie for the publication of The Satanic Verses. It called on European governments to treat Muslims "as complete citizens, neither restricted in their freedoms nor unduly permitted to issue threats against others."

The report suggests, in other words, a kind of multicultural condescension - a view that fatwas and threats of violence are simply the Islamic way and must, at least within the community, be tolerated. Of course, this becomes sort of a self fulfilling prophecy as Islamic reformers are run off. When the lion is allowed to lie down with the lamb, what follows is usually dinner.

The co-author of the report noted that "[u]nless Muslims are allowed to discuss their religion without fear of attack there can be no chance of reform or genuine freedom of conscience within Islam." Without ensuring this, "there can be no chance of reform or genuine freedom of conscience within Islam."

The report does not offer much in the way of specific proposals. The easy thing - at least for the lawyers and public officials who decree it - is to protect critics from violence and calls for violence.

But the report may also reflect a tension with the notion, which seems to enjoy substantial support in Europe, that religious groups and religions ought to be protected from denigration. To what extent do legal prohibitions of denigration reinforce cultural pressure?

And should there be legal protection for critics that goes beyond the punishment of violence and express threats of immediate violence? Imagine a critic who is branded an "idolator" and "apostate" by a Imam who teaches an unnuanced reading of Sura 9.5 ("slay the idolaters wherever ye find them"). There are, of course, nuanced readings of this verse in Islam (held, I suspect, by some overwhelming percentage of Muslims) which argue that it does not require killing anyone.

Our American answers would turn on whether comment is likely to incite imminent violence but, in this context, one can infer that only if one makes a judgment about what the words said mean to a class of religious believers. Should the state take that into account in responding to the comments, i.e., reacting differently to different speakers who are presumed to have different audiences? If the state can do that, can it move (hard to imagine in the US tradition) against religious teachings that call for violence under certain circumstances, i.e., apostasy? Certainly it can do so through persuasion, but it ought it be able to do so through sanction?

Should the state be permitted to act to encourage forms of religion that are compatible with free and pluralistic societies?

Cross posted at Marquette University Law School Faculty Blog.

Sunday, November 09, 2008

Post election rock

Late today, but it's post-election time and we should all feel good for awhile before we get back at each other's throats. Has the One who left us here come for us at last?

I have insisted that the proper response when you lose an election is to be a happy warrior. I couldn't find a great clip but I like ELP's "Jerusalem." "I shall not cease from mental fight nor shall my sword sleep in my hand till we have built Jerusalem in England's green and pleasant land." Or, in our case, achieved the Restoration. I'd give a hat tip to Tony Blankley on this but he actually credited the poem to Robert Blake. You should keep your eye on the sparrow when the going gets narrow, but that's not what we're talking about here. The party of Sarah Palin is not the He-Man Women Haters Club.

And, its so obvious, but I have to do it. 46% of the vote? "God's will! I pray thee, wish not one man more." They will come.

Post-election Reflection

1. Conservatives ought to be wary of opponents bearing advice. A case in point is the idea that we must jettison the "Sarah Palin" wing of the party. I'm not sure what that wing is, although I suppose it means social conservatism. It's hard for me to see how that is the lesson to be drawn from successive election defeats in which social issues were not predominant. This election turned out to be about the economy. If there is any imperative for conservatives, it is about how to fashion policies that help the market to work for the middle class and to learn how to articulate the way in which it does apart from talk about taxes.

2. Incidentally, the Palin bashing by McCain's people and his silence on it are shameful. The charges are facially incredible and the idea that McCain lost because of Palin is silly. He lost the election on September 15.

3. We should be careful about talk of realignment or a new Democratic era. In 1976, Jimmy Carter was elected President and there were 292 Democrats in the House and 61 in the Senate. Our new President was also thought to be transformative. He was the first Southerner to have been elected without having first served as Vice President since Reconstruction and this was said to have healing and racially redemptive qualities. He was said to be a breath of fresh air after the imperial and heavy handed Nixon presidency. He spoke of moral renewal and a government as good as the American people. I recall that he walked during the Inaugural Parade and everyone swooned. There was - I was there and remember - talk about how the youth vote (that would have been me and my contemporaries) meant the end of the GOP. Four years later, the Dems had lost 49 seats in the House, 15 in the Senate and the Presidency.

4. I note that, in today's Washington Post, an omsbudsman came to the conclusion that the paper had been biased in favor of Obama and that gambling has been going on at Rick's nightclub in Casablanca. Sorry, they say, our bad. That's ok. The New York Times is still stuck on the first step. It looks like the Post has already moved to the fifth ("Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.")

5. Lighten up on the Nancy Reagan joke. It was funny.

Thursday, November 06, 2008

Is racial change on offer?

Black conservative Shelby Steele throws some cold water on the theme of racial redemption expressed by Obama's victory. Steele has always argued that Obama is a "bargainer" - a black man who promises whites that he will not accuse them of racism if he does not hold his race against them. This, by itself, might be called racial reconciliation, but, for Steele, Obama offers whites this racial innocence only in return for their support. Thus the implied and express charges of racism in response to certain criticisms of Obama.

For Steele, this is anything but post-racial. Nevertheless, couldn't an Obama victory move us in a post-racial direction? Over at NRO, a number of commentators argue that, if it doesn't, it should. Obama's election, they say, should lead to a recognition that the real problems facing the African-American community are largely unrelated to current day racism.

But Steele isn't buying.

Like most Americans, I would love to see an Obama presidency nudge things in this direction. But the larger reality is the profound disparity between black and white Americans that will persist even under the glow of an Obama presidency. The black illegitimacy rate remains at 70%. Blacks did worse on the SAT in 2000 than in 1990. Fifty-five percent of all federal prisoners are black, though we are only 13% of the population. The academic achievement gap between blacks and whites persists even for the black middle class. All this disparity will continue to accuse blacks of inferiority and whites of racism -- thus refueling our racial politics -- despite the level of melanin in the president's skin.

I'm a bit more optimistic, but the ball is in President-elect Obama's court. We can move past our racial politics if he intentionally decides to lead us there. I don't expect him to do that, but he is uniquely situated to accomplish that.

Wednesday, November 05, 2008

Change all around

Congratulations to President-Elect Obama and his supporters. While I would have preferred someone along the lines of Michael Steele or J.C. Watts, the election of an African-American to the Presidency is historic. It reflects racial progress and is itself redemptive and healing.

"Change" is here, but its still unclear to me just what it will be. As I said on WMCS last night, if Obama doesn't disappoint his enthusiastic supporters on the left like Joel McNally (who was in studio), he's likely to be a one term President. Interestingly, Eric Von expects him to do just that.

As for the state of the GOP, it was a bad night but not nearly as bad as we feared it might be. The Senate and House pickups are at the low end of the expected range and Obama's margin of victory was less than or comparable to those of Clinton.

But a loss is a loss and this is two in a row. Although the media deserves some of the blame and McCain did not run a good fall campaign, it would be a mistake if we avoid the frank and difficult discussion of what conservatism means in 2008.

What do we need to change?

That's a conversation that begins today.

Tuesday, November 04, 2008

A few initial reactions

It doesn't look like an Obama blowout, but without Pennsylvania, the path to victory for McCain is remote. He needs to win Virginia, North Carolina, Ohio, Indiana Missouri and Florida - all currently too close to call. It seems unlikely that all of these would break the right way.

But even that leaves him ten electoral votes short and there are only three places to get them - New Mexico, Nevada and Colorado. He has to win two of the three.

At this point, it looks like 51-48 and 317-221 for Obama. 57 Dems in the Senate.

Monday, November 03, 2008


I'm not going to post any election predictions because, while I don't believe in the Bradley effect, I am a bit wary of the bandwagon effect.

But here is something to mess with your minds.

The polls have fluctuated a bit, but Obama has been ahead nationally by 2 to 10 points and is, by poll average, ahead in enough states to win comfortably in the Electoral College.

But what if there is a systematic bias in favor of the Democrats (as there were in the exit polls in 2004) and a late surge for McCain. Libertarian blogger Vox Day (who is not voting for McCain) thinks you have to adjust the polls by 5% in favor of the GOP. I certainly wouldn't think there is any rule to that effect (I don't think that pollsters generally overstate the Democrat vote by 5%), but, if the poll results are affected by assumptions regarding turnout and party identification that don't hold up, it could happen.

Blogger Baseball Savant, tries that adjustment, using's projections. McCain wins with 274 electoral votes. If you use the RCP averages, you can get McCain to 271, but only if you ignore a half point in Colorado.

Of course, for this to happen, the error would have to be systematic. There would have to be enough polls with a methodology skewed in the same direction to have significantly pushed the averages to the left. (Note: I am not talking about the statistical margin of error here. That's another thing altogether.)

Testing this theory would require more work than I have the time or inclination to do. For example, how do the adjustments for each poll work (I suspect that all of that info isn't even publicly available) and is there any poll that shows a McCain win or a collection of states that exceeds 270 within the statistical margin of error or with a McCain lead? Fox/Rasmussen is close but not quite there. IBD/TIPP is within the margin of error nationally, but I am unaware that it does state polling.

So, you'd have to have a systematic Obama error in almost all of the polls and a surge to McCain.

This may be unlikely, but it's not impossible. We probably won't know more based on leaked exit polling because those are likely to overstate Obama's vote as they overstated Kerry's.

Prior Restraint in Black River Falls

I have posted a comment on the awful decision by a circuit judge in Black River Falls enjoining political speech over at the Marquette University Law School Faculty Blog.Democrats should be careful about what they wish for. If this is permissible, then at least half of Obama's spots in Wisconsin could have been ordered off the air.

Courts (or at least those who know what they are doing) are reluctant almost to the point of always and everywhere refusing to issue prior restraints on political speech. There are good reasons for that.

H/T: Illusory Tenant

Update: The Court of Appeals has stayed the TRO.

Sunday, November 02, 2008

Old songs for election week

Old rock for election day.

For my liberal friends, we'll start with the great John Lee Hooker's "Democrat Man" released in 1960. It's a bit anachronistic for today. Hooker wants the Democrats in power so he won't go to the "welfare store" but women keep voting them out. (You have to wait for the introductory jingle to end.)

In acknowledgement of this year's Democrat Man, here's Willie Dixon singing the Seventh Son. "I can heal the sick/raise the dead."

But to acknowledge him in another way, let's listen to Rush and "The Trees." "Now there's no more oak oppression/For they passed a noble law/And the trees are all kept equal/By hatchet, axe and saw" (Warning: Hair Alert)

In honor of Sarah Palin, as we prepare to elect the most pro-abortion President in our history, here is the Cranberries' "Icicle Melts."

And for John McCain - and for all of us - there can be no surrender. It's one of those times. "Well, now young faces grow sad and old/And hearts of fire grow cold/
We swore blood brothers against the wind/Now I'm ready to grow young again."

Saturday, November 01, 2008

Who could oppose paid sick leave?

One of the weaker arguments on behalf of the City of Milwaukee's sick pay referendum is that it will help businesses. It is certainly true that paid sick pays can be a benefit that helps attract and retain good employees. That's why many businesses offer them.

But those that don't aren't stupid. They have either found that they can attract the workers they need without offering paid sick days or that, in the context of their business, the benefits to the enterprise don't outweigh the cost.

The idea behind requiring them to offer paid sick days presumes that they will simply absorb the additional cost and that there will be no impact on employment or other forms of compensation.

That's unlikely. In a competitive labor market where the marginal cost of labor is roughly equivalent to marginal productivity, some people who were worth employing will no longer be. There will be the winners that we see (i.e., those who still have a job and now have paid sick leave) and the losers that we do not see (those who would have been employed but are now unemployed). In a market where there is an oversupply of labor, employers who are forced to provide paid sick days will simply reduce other forms of compensation.

One argument in support of this type of regulation is that, if you impose this obligation on all employers, they will be able to pass the cost on to their customers knowing that none of their competitors will be able to avoid it. There are market conditions where that can happen.

But this isn't one of them. Many employers can escape the mandate by moving the jobs outside the city.

Of course, you can make these arguments in opposition to almost all forms of mandated labor practices, including wage and hour regulation. I can see an argument that certain employment relationships are an affront to human decency even if they are freely entered into. But I don't know that the absence of paid sick leave qualifies as such.