Now Bush plays Supreme Court roulette

THERE IS the thin hope that President Bush will back himself into a corner in his choice to replace Sandra Day O'Connor on the Supreme Court. Having long ago declared that far-right justices Antonin Scalia and Clarence Thomas were the ones he most respects, Bush already knows that nominees who remotely seem like them will spark even more national division at a time when Americans are already cleaving off from support of his invasion and occupation of Iraq.

Dividing the nation has not stopped Bush yet from pursuing his legacy, but the nation is nowhere as far right (or far gone) as Scalia and Thomas on many issues, the most prominent being abortion. As the right wing clamors for Bush to nominate a Scalia or Thomas, it will be fascinating to see what Bush does with this moment as his job approval ratings have fallen from the 90 percent of post-9/11 to 42 percent in June polling by both The New York Times/CBS News and the Pew Research Center for the People and the Press.

O'Connor's retirement comes as Bush is dealing with the fact that the percentage of Americans who think the US military is taking an unacceptable number of casualties in Iraq has mushroomed from 28 percent in the first month of the invasion to 69 percent last month.

Thus, much rides on how much of his overall legacy Bush thinks he has on the line. A more popular or successful president might be more in a position to nominate the kind of justice he really wants. But as events deteriorate abroad and as a majority of Americans have grown dissatisfied at home with the overall direction of the country, there is more pressure on Bush than there was three years ago to pick someone who will not conduct the feared Sherman's march through abortion rights, affirmative action, and federal protections for ordinary citizens.

In a CNN/USA Today poll last month, 54 percent of Americans said they either wanted the court to stay as it is now or become more liberal, compared with the 41 percent who wanted the court to be more conservative. In a Pew poll last month, 63 percent of Americans said the court should stay as it is or become more liberal, compared with only 29 percent who wanted it to become more conservative. In a Washington Post/ABC News poll last month, 62 percent of Americans said they wanted the status quo or more liberalism on the court, compared with 35 percent who wanted more conservatism.

Whatever conservative revolutions President Reagan set in motion in the 1980s and House Speaker Newt Gingrich fueled in the 1990s, Americans are consistently saying there are limits to how far they want the revolution to go. The polls and Bush's presidency are forcing him into being more like Gerald Ford than Ronald Reagan.

Ford had one Supreme Court choice during his presidency. It was 1975, when Americans were still recovering from Watergate and the resignation of President Nixon. Ford wanted a conservative, but not one who would inflame the nation's passions. Ford picked John Paul Stevens, a Chicago federal appeals judge who sailed through the Senate, 98-0.

Early in his term, Stevens voted against affirmative action, but then he evolved into being part of the majority that upheld affirmative action in 2003 at the University of Michigan law school. It was Stevens who wrote the stinging dissent in the court's decision to effectively halt the 2000 Florida recount and hand Bush the presidency: ''Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

One could also hope that, having spoken so clearly about Scalia and Thomas being his ideal justices, Bush would nominate a ''stealth" conservative. His father thought he did that in picking the obscure David Souter. Souter was also easily confirmed by the Senate, 90-9. But Souter became a justice who often voted against the court's archconservative wing.

So who knows? The nation clearly reelected Bush last year because it trusted him more than his challenger at a time of war. But only a minority of Americans, according to polls, want a more conservative Supreme Court. If Bush listens to the people, he will have a chance to soften his legacy. If he does not, he will cement his legacy as the divider, not a unifier.

Derrick Z. Jackson's e-mail address is jackson@globe.