Durham, N.C. - President Bush now faces this stark choice: nominate the most conservative judge or lawyer he thinks can be confirmed (following a possible nuclear meltdown in the Senate), or address the disturbing degree of polarization that continues to fester in America by choosing someone unquestionably conservative but less extreme. For the sake of his country and his legacy, he should navigate the road less traveled by his administration and select a moderate conservative.

It is always significant when a Supreme Court justice steps down. But make no mistake: Justice Sandra Day O'Connor's recent announcement is not just significant “- it is seismic, akin to Judge Robert Bork's nomination in 1987 to replace Justice Lewis Powell. Like Justice O'Connor, Justice Powell was an old-school, centrist conservative, not a new-school, conservative ideologue.

Justice O'Connor has cast deciding votes in a number of critical areas of constitutional law; one should expect a lot of revisiting once her successor is in place. In constitutional litigation, the Supreme Court is not as concerned about maintaining fidelity to its past decisions (especially recent 5-4 rulings) as it is in cases involving the interpretation of federal laws. Many issues will be up for grabs - “ for example, Ten Commandments displays, government funding of religion, various abortion restrictions and perhaps Roe v. Wade itself, campaign finance regulations, affirmative action in higher education, race-based redistricting and antidiscrimination laws protecting women and the disabled.

While it is unrealistic to expect the president to nominate a jurist as moderate as Justice O'Connor, certain individuals widely believed to be on his list of candidates are closer to her ideologically and temperamentally than others. Alberto Gonzales, John Roberts and J. Harvie Wilkinson III, all quite conservative, would nonetheless not warrant a filibuster. Judge Wilkinson, for whom I clerked a few years ago, is a former Powell clerk and protege.

In any event, it is much more important to the stability of our country that the president and Senate replace Justice O'Connor with a moderate conservative than to elevate a woman or racial/ethnic minority whose ideological commitments are significantly to the right of the political center of gravity of the country.

President Bush might consider the considerable benefits of pursuing a more moderate path. As president of all the people, he could heal longstanding wounds through his actions in addition to his words. The nomination of a moderate conservative would be one encouraging way for him to pursue that worthy cause. The country would be better off: We would avoid protracted filibuster battles, possibly resulting in the end of the Senate as we know it, and the court would be allowed to continue along its moderately conservative path.

A moderate conservative appointment would also render the president's place in history more secure. Though history is often written by the winners, it is impossible for the current administration's supporters to act as sole author in shaping the Bush legacy; the nation is too polarized. If widespread fears about the consequences of a court steered by Bush appointees proved to be unjustified, the president would not only succeed in bringing the country closer together, but his legitimacy would also be enhanced in the eyes of many citizens. Further, he would exhibit independent judgment and political courage for which he would be widely respected. Finally, and like his conduct just after the tragedy of Sept. 11, 2001, he would provide genuine leadership for all Americans.

Depending on whom he selects, President Bush has the power to make the process our country is about to endure much less destructive, painful and polarizing than it might be. To be sure, he has the right to nominate anyone he wants. But just because someone has a right to do something does not mean it is the right thing to do. The president should not ignore the basically moderate views of the American people in impacting the Supreme Court's course for decades to come.