One of my go-to resources for trying to stay abreast of developments in constitutional law is the National Constitution Center and especially its podcast, We, the People. Under the inspired and able direction of Jeff Rosen, its president and CEO (and former D. C. Circuit clerk), the Center consistently produces excellent materials on the history of the Constitution and its application to current controversies, drawing upon the best scholars and thought leaders who always engage with one another in a thoughtful and respectful way, modeling reasoned discourse at its best.

Last week’s episode of the We, the People podcast took up Judge Aileen Cannon’s dismissal of the criminal charges against former President Donald Trump over his use of classified documents on the ground that the Special Counsel who brought the indictments was not properly appointed. In his typically masterful fashion, Rosen moderated a discussion between Josh Blackman of South Texas College of Law-Houston and Matthew Seligman of Stanford Law School. As amicus curiae, both Blackman and Seligman had argued the matter of the Special Counsel’s appointment before Judge Cannon; Seligman supporting the appointment of the Special Counsel and Blackman opposing. Their discussion provides important insights into this consequential issue, but even more important, their discussion is a model of reasoned and respectful disagreement that I would commend to all.

I was so taken with the manner in which Seligman (who clerked on the D. C. Circuit) and Blackman (who is one of the nation’s most careful observers of the D. C. Circuit) carried on the debate that I wrote an email thanking them. Both responded in a generous manner, and something Seligman observed struck me forcefully. With permission, I quote from his email: “I think clerking for a judge on the D. C. Circuit is particularly conducive to cultivating the reasoned discourse you mention. Being in the same courthouse as everyone else – judge and clerk alike – enables one to see those with differing views in the light of their humanity, rather than as a two-dimensional ideologue that one might see from a distance.”

Since stepping down from the D. C. Circuit, I have spent a good deal of my time writing and speaking on the dangers of the toxic political polarization that has beset our nation and is a cancer on the body politic that threatens the Republic. See, e.g., The Degradation of Civic Charity.  Last February, I moderated a conversation between Justices Sotomayor and Barrett at a gathering of the National Governors Association on how the Supreme Court in particular and the federal judiciary more generally serves as a model for the type of reasoned and respectful disagreement that our public discourse lacks but desperately needs. (You can watch that conversation here.) After watching that discussion between his two former colleagues, Justice Stephen Breyer penned an op-ed in the New York Times making the same point under the title, The Supreme I Served on Was Made Up of Friends.

The research shows that the antidote to toxic political polarization works best in the way Seligman described his experience clerking on the D. C. Circuit: in small groups where people meet face-to-face in person and listen carefully to understand another’s point of view and not simply to determine how best to craft an opposing argument. I’d be pleased to learn that what Seligman reports about his time as a clerk on the D. C. Circuit is true – that those who clerked there learned the value of reasoned and respectful disagreement.  That was certainly my experience as a judge interacting with my colleagues.

The D. C. Circuit issued only one opinion last week. When the Nuclear Regulatory Commission (“NRC”) receives a private facility’s application for a license to store spent nuclear fuel, the NRC gives any interested party an opportunity to intervene if that party establishes administrative standing and submits an “admissible contention.” An admissible contention is one that raises an issue material to the license and demonstrates that a genuine dispute exists on that issue. 10 C.F.R. § 2.309.  In Beyond Nuclear, Inc. v. NRC, No. 20-1187, the D.C. Circuit, in an opinion authored by Judge Rao and joined by Judges Walker and Garcia, denied several consolidated petitions challenging the NRC’s decision to deny intervention to various parties interested in the NRC’s consideration of an application from Holtec International. The court held that the NRC had acted lawfully and reasonably in rejecting numerous contentions submitted by the petitioners, ranging from compliance with the Nuclear Waste Policy Act and the National Environmental Policy Act to whether Holtec had made a material misrepresentation of fact in its application.