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With Democratic seats in the U.S. Senate dwindling even further because of Election Day losses, the prospects for President Bush’s controversial — and filibustered — judicial nominees seem a little brighter. With results yet to be finalized, it looks like the GOP will pick up four Senate seats. Because the filibusters were already hanging by the slimmest of margins, the ability of Democrats to maintain them is shrinking. California Supreme Court Justice Janice Rogers Brown, whom Bush nominated for the U.S. Court of Appeals for the D.C. Circuit, may be one of the early beneficiaries. Brown, like Bush’s nominees to the 9th U.S. Circuit Court of Appeals, William Myers III and Carolyn Kuhl, is blocked by a filibuster, preventing a full Senate vote. Besides losing seats, some Democrats who voted to maintain the filibusters may also lose their political will — especially if they come from states that leaned heavily toward Bush or are up for re-election soon. “I just don’t know whether the resolve will be there,” said Gerald Uelmen, a professor at Santa Clara University School of Law. “They’re going to have to be a lot more selective” in whom they block. Judicial watchers say Democrats are also going to have to deal with the momentum of a second Bush term. It remains to be seen whether he will interpret his 3.5 million-vote lead as a mandate, but some are already tolling the end of what they call Democratic obstruction. “The message should be loud and clear to liberals. The idea that there is support for their view is fanciful thinking,” said Joseph Russoniello, a former Northern District U.S. attorney who is now dean of San Francisco Law School and senior counsel at Cooley Godward. Russoniello said the broad Republican victory — Bush plus the Senate gains — shows that the influence of traditional family values can’t be overlooked. And that’s true when it comes to judicial nominees, too. “If Democrats think there’s still an opportunity to obstruct on the basis of candidates’ … values, they’re mistaken,” he said. Democrats describe different reasons for blocking Brown, Myers and Kuhl, but much of their discussion of the nominees has centered around how personal beliefs will influence legal rulings on social topics like abortion and gay rights. “Democrats need to and should move closer to moderation,” Russoniello said. Any signals of a change in Democratic strategy could come quickly. Should Chief Justice William Rehnquist step down, Bush would get his first vacancy — two if he tries to move a sitting justice to the chief’s chair. That could force Senate Democrats into a tough choice. If Bush moves, for example, to elevate Justice Clarence Thomas, Democrats may fight that. A less contentious choice for chief, Uelmen said, would be Justice Anthony Kennedy, and Democrats would likely hold off on filibustering him. “The chief justice is just such a symbol of the authority and rule of the court, and to some extent Bush may be influenced by trying to make a historic appointment,” Uelmen said. That could mean appointing a Hispanic, like White House counsel Alberto Gonzales, he added. Wherever the Democrats pick their battles, they’re going to fight with fewer soldiers. A closer look at the November 2003 cloture motion on Brown’s nomination illustrates how the balance of power has shifted. Senators voted 53-43 on Brown, just seven short of the 60 votes needed to stop a filibuster. Four members, including Sens. John Edwards and John Kerry, did not vote. Two Democrats joined the Republican vote to stop the filibuster. With Republicans netting four seats, they’ll start with 55 yeas — meaning only a few Democrats would need to cross party lines to end a filibuster. “Democrats will be scared to stand up to Republicans. There may be some other Democrats who are as vulnerable as Daschle,” Uelmen said, referring to minority Senate leader Tom Daschle of South Dakota, who was portrayed as an obstructionist during the campaign and lost his re-election bid. “The fact that they will be only five votes away makes it easier for them to call [the Democrats] obstructionist.” The cloture vote on Kuhl was also 53-43. Myers’ was 53-44.

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