The New York Times Sunday editorial finally raised an issue that used to loom large in the public debate, but has been largely missing this election season.  What will the Supreme Court look like for the next generation?

Mr. Obama seems likely to pick moderate justices, who would probably not take the court back onto a distinctly liberal path, but also would be unlikely to create an unbreakable conservative bloc.

Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance.

Given the fact that we’re talking about a branch of government here, it’s a rather big issue despite the fact that the media has largely focused elsewhere throughout the campaign.  Since it’s the Times, it’s not surprising that the editorial uses language that makes it unbearably clear which side they deem reasonable. 

Obama’s choice will be moderate.  McCain’s choice will be archconservative.  Not just conservative, but “arch”, as in “archenemy”.  “All things in moderation,” is an old aphorism, reflecting good and proper.  Ah, the use of language to paint a picture.

But then, what is Obama’s vision of the future of the law, of the Constitution, or a court that understands how its decisions affect this country’s citizens?

At the same time, Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control. As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

I find it ironic that the Republican party, at least when it comes to judges reflecting their belief that it is their duty to impose a morality-based jurisprudence on Americans, have neither fear nor shame to stand up for their beliefs.  This has nothing to do with agreeing with their desire to impose a moral code on others, but just their sense of freedom to be what they are.

Obama’s “moderate” stance is the old “half a loaf” position.  He is not the counterpoint to the “archconservatives”, but conservative “light”.  We had a name for Barak Obama 25 years ago:  Republican.  We did better with Richard Nixon in the White House.  Pretty ironic, no?

How the Constitution fell so out of favor over the years, as the atmosphere of fear was carefully cultivated to push God-fearing Americans every closer to a Gulf of Tomkin resolution covering the North American continent is quite amazing.  It was really a miraculous achievement of public relations and psychology.

In the scheme of things, half a loaf is better than no loaf.  Tension on the Supreme Court between those who openly express their favor for security over rights may not result in the unanimity that one hopes for in order to provide long-standing clarity, and will not do much for restoration of rights that have eroded at an increasing pace, but it’s better than a wholesale change in our foundational law to reduce what little remains to vapid platitudes.  So the choice is clear.  But it’s hardly a good choice.

Lawyers arguing on the side of criminal defense and civil rights will step into the well and argue their hearts out.  It would be nice to think that someone is listening, even with only half an ear.