Legal Beat

Santorum's pragmatic message didn't go over well with the crowd. Attendees rose up during the question and answer session to urge a more aggressive approach.

"I don't see how we're going to win a war if they're warriors and we're pacifists," said Joel Mandelman, a former Senate Judiciary Committee counsel. "It guarantees we'll lose every war."

It's not that Santorum isn't worried about who Obama will nominate. He warned about Obama judges "poisoning the well of American jurisprudence for generations to come."

But Santorum said many in the Republican caucus would be turned off by a filibuster and a failed one would make the GOP look all the more marginalized.

Santorum said it would be a challenge to even convince GOP senators to make judicial nominations a priority. "This is going to be hard to do," Santorum said, given all the other high-profile Democratic initiatives they're fighting against.

Wendy Long, head of the Judicial Confirmation Network, a conservative group that focuses on nominations, urged Republican senators that no matter how sympathetic a nominee's personal story, they should avoid the temptation "to rush to the microphones." Instead, Long said senators should take their time and "scrutinize, scrutinize, scrutinize very carefully" their records.

Long said Republicans should approach nominees with "a presumption that they're not going to be able to uphold their oath" given Obama's emphasis, on the campaign trail last year, on the need for judicial nominees with empathy.