- [narrator] When Donald Trump nominated Amy Coney Barrett
to replace Ruth Bader Ginsburg on the Supreme court,
Liberal Democrats scream bloody murder
about the Legitimacy of appointing a justice
this close to an election while calling attention
to Barrett's Catholicism and anti abortion animus.
- And it looks like having three names is the only thing she
and her predecessor have in common.
- [narrator] But according to
Reason Senior Editor Jacob Sullum,
when it comes to criminal justice and abortion,
the two may have far more in common than
Conservatives and Progressive seem to realize.
- Ruth Bader Ginsburg was about as good
as you could reasonably expect a
quote unquote Liberal Justice to be.
She was generally sound on the Fourth Amendment
on the first Amendment when it came to issues of due process
and criminal justice cases in general.
[narrator] Despite being attacked as a doctrinaire law
and order conservative Barrett says
Sullum has issued opinions that
track pretty well with Ginsburg
when it comes to limiting the police.
He points to one ruling in particular in which Barrett found
that DEA agents didn't have a right to search a property
when granted permission by a woman who didn't live there.
- So therefore this was an invalid search
and therefore they can't use this evidence
against the drug suspect.
That's an example of a decision that that would be
traditionally condemned by conservatives,
where you hear you're letting this guy
off on a technicality,
but in fact it's what the fourth Amendment
in my view at least requires.
So that's encouraging.
[narrator] In at least one case involving a detective who
lied in a statement so that he could arrest an
innocent man for murder.
Barrett came down hard on his claim to qualified immunity
which shields law enforcement officers
from being sued for misconduct.
- And Barrett took credit said no way.
There's no way that you could have thought
it was okay to lie in a probable cause affidavit.
The guy that you victimized should
have a chance to make that case in court.
- [narrator] When it comes to abortion.
Barrett has said that she thinks it's unlikely
that the court will fully overturn Roe V. Wade,
even as she has criticized the ruling as
an act of judicial overreach.
Ruth Bader Ginsburg had similar reservations about
the landmark 1973 case.
- Ginsburg had two main criticisms of Roe V. Wade.
One was that she didn't think it took
the right analytical approach,
instead of using this sort of vague notion
of privacy protected by substantive due process
which really has no basis in the constitution.
She thought it should have been an equal protection argument
that abortion laws discriminate against people based on sex.
And she also thought that the Supreme court went too far
in preempting in a wholesale sort of way
state abortion laws.
Ginsburg thought that this led to
an unnecessary federalization of the issue that
led to a great deal of division and acrimony.
And if the court had left a little bit more time
for the issue to work its way through the democratic process
there wouldn't have been the sense that the Supreme court
had arbitrarily overridden the decision decisions of
State Legislators who are trying to represent the
opinions of their Constituents.
And I think Barrett would agree with a lot of that.
I honestly don't know how she's going to
approach abortion cases except to say that
she probably will be receptive to upholding the sorts
of laws that are up to make their way to
the Supreme court,
which have to do not with wholesale bans
but with various kinds of restrictions.
- [narrator] On issues such as gun rights
and federalism,
Barrett would likely be much better
from a libertarian perspective.
- Ruth Bader Ginsburg, like most people on the left
she had a blind spot when it came to the second Amendment
which is after all part of the bill of rights,
she agreed with her other Liberal colleagues that
the second Amendment basically does not impose any limits
on what governments can do in terms of gun control.
The majority of course found otherwise
which I think was the right decision.
She was also bad when it came
to Congresses use of the Commerce Clause.
One was Obamacare where the issue was
can the federal government
under the pretext of regulating
interstate commerce say,
you must buy government approved health insurance.
And there were some very compelling arguments
against that notion.
This is not Interstate Commerce for one thing.
Barrett is definitely going to be better when
it comes to the second Amendment.
I suspect she will better when it comes to property rights.
I'm almost certain she's going to be better in terms
of defining Congress's powers under the Commerce Clause.
So those are ways in which I think she would definitely be
better from a libertarian perspective,
on Fourth Amendment she looks pretty good.
I can't say that she's better than Ginsburg on
the Fourth Amendment.
Ginsburg was good.
But there are reasons to think Barrett will be better
than Ginsburg on issues that libertarians care about
and will be nearly as good or as good on
other issues that Progressives tend to care about.