U.S. Supreme Court Justice Antonin Scalia's death a little more than a month ago touched off a playground squabble between Republicans in the U.S. Senate and President Barack Obama.
Before the echoes from the announcement of Scalia's death had faded out, Senate Majority Leader Mitch McConnell, R-Kentucky, had vowed Republicans in the Senate wouldn't consider or vote on any Obama nominee for the nation's highest court. It didn't matter if John Marshall came back to life and the president put him forward for the Senate's advice and consent, the GOP lawmakers were determined to turn a deaf ear.
McConnell and other Republicans said they were awaiting guidance from the democratic process. They said that, in the last year of a president's tenure in office, the people should be allowed to determine who will appoint a Supreme Court justice.
The Republicans' stance has provoked controversy.
Critics have focused fire on the shaky historical premise of the GOP argument. Those critics have pointed out that there have been many examples in American history of justices being nominated and approved near the end of a president's time in office.
Republicans have countered that with quarter-century-old statements from Vice President Joe Biden, then a Democratic senator from Delaware, and U.S. Sen. Chuck Schumer, D-New York, vowing similar obstructionist tactics with Republican high court nominations.
In the math of today's politics, two wrongs apparently do make a right.
Other critics have pointed out that the GOP may be weakening its own negotiating position. Republicans control the Senate now, but they could lose control in the fall – a possibility that looks increasingly likely for a party at war with itself over the rise of Donald Trump.
If there's a Democrat in the White House and Democrats win control of the Senate, then before the election is the moment of the Republicans' maximum leverage.
Perhaps that's why a few Republican senators are starting to hedge their bets and say they might be willing to consider an Obama nominee right after the election.
These, of course, are historical and political arguments. They're valid, but not the most essential issue here.
Few people have come right out and said that subjecting Supreme Court appointments to the equivalent of a referendum is just a spectacularly bad idea – regardless of who came up with it.
At the most basic level, the judicial branch exists to serve as a check on the excesses of democracy and the political process.
The Supreme Court, in particular, serves as the final interpreter of constitutional principle to prevent a tyranny of the majority. The court is supposed to be the firewall that blocks us from voting away fundamental freedoms and rights.
While we leave many things up to majority decision at the polls and through the election process, there are some important things we take off the table and say that the voters can't decide them. We don't get to vote, for example, about whether our neighbor should be a Catholic, a Baptist, a Muslim or an atheist. That's her right – and her choice.
To make it easier for the court to preserve those rights, we remove the justices from almost every political pressure. That is why they have lifetime appointments – and why the standards for impeaching and removing a justice are almost impossibly high.
We want them to work outside the political process so they can protect our rights from the abuses of basic rights that process can generate.
What Republicans in the Senate now argue – and, apparently, Biden and Schumer argued in the past – is that the direction of the Supreme Court should be subject to election results.
If we applied that logic to basic constitutional principles, we would hold a referendum on how much gun control the Second Amendment allows. Given that 90 percent of the voting public approves of some restrictions on gun ownership, the National Rifle Association would love that.
That is the sort of fire Republicans in the Senate now play with.
There are tactical reasons the flames could burn them, but that's not the reason to oppose the stance they're taking.
No, the real reason is that their position, if it prevails and becomes precedent, could scorch all of us – and incinerate freedoms we hold dear.