Eleanor Eisenberg, who retired Aug. 19 as executive director of the Arizona chapter of the American Civil Liberties Union after eight years in the post, has been in the forefront of progressive causes most of her adult life. After several decades of volunteer involvement and a 25-year public interest law career in California, Ms. Eisenberg was asked about the Arizona issues she has championed or opposed over the years. Arizona Capitol Times interviewed her in her Phoenix office on Aug. 16.

Why are you leaving the ACLU≠

I’m leaving because I’ve been working on these issues for a very long time, and unfortunately at the expense of my own health, so I am truly retiring. My Medicare kicks in in January. I will be 65.

You’re not really going to retire retire, are you≠ You’re too active for that.

Here in Arizona I’ve agreed to work as a volunteer on death penalty issues, issues about an independent judiciary, and on the proposed marriage amendment, the so-called marriage amendment that will be on the 2006 ballot.

On the death penalty, what’s your position on that≠

It’s wrong, even to somebody who is guilty. I have never understood the reasoning. There’s really a bumper sticker that says it all: “Why do we kill people who kill people to show people that killing people is wrong≠” Now we know with total certainty that innocent people are sometimes executed, and I don’t think we can relax about it because of DNA, because DNA is only going to help in maybe 10 percent of the cases.

You mentioned independent judiciary. What’s that all about≠

I think the system of checks and balances that is provided by the Constitution has been almost shredded with the takeover first by the executive branch and more recently Congress. And it is the role of the courts as the last resource to maintain that balance.

Are you talking more about the federal level≠

Well, there have been bills the last few years in the Arizona Legislature to limit the jurisdiction of the Arizona Supreme Court, change the selection process, and other attempts to really denigrate the courts generally at both the state and federal level. If the courts are going to be taken over the by same ideologues — and this is not a question of political party or political philosophy, but this is an ideology that would allow appointments of judges and justices based on the prejudices of those judges and justices — then I fear for the future of this country and the state even more than I do.

What’s the answer, how do you get around the governor or the president selecting justices≠

Here in Arizona, because the executive and the Legislature are in different hands, so to speak, my fear is not so great, and we have a governor who is willing to veto bills that would denigrate the courts. At the federal level, that’s not the case, and of course at the federal level those judges are appointed for life.

In Arizona, the governor selects justices from a list provided by a commission. Does that work for you≠

It works so long as the committee that does the review is bipartisan, which it is. The Legislature wanted to change that so they would have to get their consent and have the ability to review them every four years.

Wouldn’t that require a constitutional change approved by the voters≠

Yes, it would, but this Legislature has been very blatant about wanting to reign in the courts. They point to several decisions, like the decision allowing poor women to get abortions funded through AHCCCS, and in fact they also point to the refusal of the Supreme Court to become involved in the question of whether the governor had a line-item veto with respect to the budget.

You do have congressional approval of federal judges and justices.

I think that was meant as a safety valve, because it is a lifetime appointment.

Tell me about your position on the marriage amendment≠

That is defining marriage as one man and one woman and beyond that, prohibiting people who choose arrangements other than marriage, for instance, cohabitation, which is now legal in this state, from getting any sort of legal recognition or benefits. This is a much broader and potentially more damaging measure beyond simply saying that marriage is reserved to one man and one woman, which is something I don’t agree with. The Arizona Constitution says no privileges and immunities should be granted to any citizens that aren’t granted to every citizen.

You took a strong position on the Ten Commandments issue. Why≠

It’s right across the street from the Legislature. It’s clearly religious. It begins with, “I am the Lord, thy God.” I would have no problem with them putting up a list of things we ought not do. We should not commit murder. We should not lie. I wonder what the state would do if there was a request from Muslims to put up a plaque with some readings from the Koran or any other biblical or religious document.

What are your concerns about Proposition 200≠

I think it was more form than substance. I don’t think it changed much about the law, except possibly in the election aspects, but undocumented people have never been entitled to public benefits. I thought it was worded so badly, that it might have applied beyond what it applies to now, like sitting on a park bench. Is that a public benefit≠ Taxpayers pay money for park benches. The attorney general’s opinion narrowed it and the courts have upheld his reading of it. So mostly I think it was a fear and hate mongering propaganda device that was mean spirited.

You were pretty outspoken about the Minuteman Project. Some critics may have thought you were defending illegal immigrants entering this country, that they had a right to enter this country.

I think I was pretty clear. Our Constitution at a minimum says anybody who is on this soil is entitled to due process. In my mind, that includes not being subjected to vigilanteeism. But equally controversially, we said the Minutemen had a right to gather to express their view, so long as they stayed within the guarantees and protections of the First Amendment. I was down there, and it was like a costume party. Half of them were in camouflage, the other half were in cowboy suits, but an alarming number of them were armed. We were very lucky that there was not a lot of violence down there. I think our legal observers probably contributed to keeping the peace.

How would you describe your relationship with the Legislature≠

I have never had the illusion that I was moving forward a civil liberties agenda, but I have until this last year felt that I did make a difference at least in damage control. I think the Legislature knows that I think a lot of what they do is just plain wrong.

Damage control in what areas≠

In being able to stop some really egregiously bad bills from becoming law. In God We Trust on the wall of every school, cafeteria, library and classroom. I think we were helpful in bringing about an affirmative bill on pharmaceutical equity. When Viagra was introduced, for some reason, because men run the insurance companies, there was a rush to include Viagra as a covered drug under insurance policies provided by employers, and still they did not cover contraception, either drugs or devices, very often. And once that passed, there was a bill introduced to limit it to certain employers, and exempt so-called religious employers, with a definition of religious employers that was way, way too broad, and we were able to defeat that.

Generally how have you been treated by legislators≠

I can think of a couple of individuals who were just rude and disrespectful, but I have been told by many individuals on the very conserv
ative side that while they more often than not never agree with me they understand the role of the ACLU, appreciated my professionalism, and were glad I was there. I have no problems with conservatives, but a lot of the people including in the Legislature who call themselves conservatives are really right-wing extremists and pretty radical.

Barry Goldwater was a conservative.

And now he is apostate in this state. He would be considered on the left now by some of those folks.

You said a couple of individuals in the Legislature were rude to you. Would you care to identify them≠

Oh, I don’t want to poison the well for my successor. The chair of the [House] judiciary not only showed me no respect but also showed no respect to the chief justice of the Arizona Supreme Court.

What issue has stirred up the most controversy≠

The church-state cases. They always bring out the death threats. And I think immigration comes next.

Do you actually get death threats≠

Absolutely.

Do you keep track of your wins and losses, and do you know what your batting average is≠

Unfortunately, we’ve won fewer and fewer each year as the Legislature has changed. And this year, being a political year in anticipation of the coming elections, there was a lot of political posturing that led to an unconscionable number of terrible bills, especially in the immigration area.

What has been your most rewarding success≠

I can think of a couple. I was very pleased with our challenge to Bible Week at the state and city of Gilbert [1999]. That was a proclamation by the governor [Jane Hull] and the mayor of Gilbert, Cynthia Dunham, declaring Bible Week, declaring the Bible to be the guiding force to which we should all turn. Once we filed a challenge, Governor Hull withdrew the proclamation, but Cynthia Dunham and the city of Gilbert fought tooth and nail. Ultimately we settled, and they agreed if they were going to issue any kind of a proclamation it wouldn’t be a directive and it wouldn’t endorse one religion over another. And I know that we’ve been accused of trying to keep religion out of the public square and that we’re anti-Christian. Neither of those is true, but we do think it’s not the government’s business to tell people what to believe, what to read and when to read it. Another was getting the loyalty oath amended. The Supreme Court forty-five years ago said the Arizona loyalty oath was unconstitutional. It required that before you had any employment opportunity you had to sign an oath that you weren’t a member of the Communist Party. That section the court found unconstitutional — that our freedom of political association meant that was an illegitimate question, because the Communist Party may or may not have advocated the overthrow of the government, but has many other purposes. So the fact that you were associated with the Communist Party didn’t mean that you wanted to overthrow the government and you couldn’t be banned from public service.

What was you biggest disappointment in this job≠

Probably that we haven’t made any further progress in the criminal vengeance system, in terms of the death penalty, conditions in the prisons and jails, just the number of people who are incarcerated, and the fact that there’s no peace and forgiveness even after they have fulfilled their sentences.

If there was one thing you could change in Arizona, what would it be≠

Hard to choose just one thing. The problems in education, across-the-board school policy, zero tolerance, we’re creating police states within the schools.

Zero tolerance for what, drugs≠

You name it. For wearing what’s not within the dress code, for giving your friend who has a headache an aspirin — that is considered a violation of a drug code. The most important thing we learn in education is to develop the skill of critical thinking. Between the AIMS test, the anti-everything policies, the zero tolerance, which by definition is not critical thinking on the part of the school, they will create generations that will make it very difficult to govern this country in a democratic way. I’ve already mentioned criminal vengeance and our attitude toward immigration. I think there is generally a lack of tolerance for our differences. Our differences ought to be celebrated, and that means whatever language you speak, your sexual orientation, it means how you want to dress, what god you want to worship, or not. Arizona tends to be very intolerant. And it always seems to me that the Legislature is less tolerant than the people are. It’s a fluke of demographics that we have the Legislature we do. —