At the top of the doorframe in one of the small offices where the Bristow Fellows work, there’s a bit of handwritten advice: “Don’t be afraid to recommend NO APPEAL.”
The current fellows who work in the Office of the Solicitor General aren’t sure who left the note, which refers to the recommendations they are sometimes asked to write regarding the authorization of government appeals in the lower courts. Until recently, Maggie Upshaw, ’16, who works in the office now, imagined it was Joseph Schroeder, ’15, a former classmate who occupied one of the four highly coveted Bristow spots during the 2016 term. But no, he said, it was already there when he arrived.
“Appeal recommendations can be an intense [part of being a Bristow Fellow]—you’re usually fresh out of law school, maybe one or two clerkships,” Schroeder said of the memoranda written for the solicitor general, who ultimately decides. “The first time you have a case where the government’s interest or the legal questions don’t point toward an appeal . . . there’s just so much trepidation” about saying no.
Since the 2011 term, four University of Chicago Law School alumni have earned spots in the highly competitive Bristow Fellow program, which gives young lawyers a chance to work for a year in the solicitor general’s office on cases before the US Supreme Court and lower federal courts.
“It was extraordinarily valuable to learn how appellate advocacy works from an advocate’s perspective, which is different from what you learn as a clerk,” said Schroeder, an associate in the Washington, DC, office of Kirkland & Ellis who clerked on the Fourth Circuit before his fellowship. “I’ll write a brief and think, ‘This is how we want to frame things because this is what’s really driving the background of a case.’”
Upshaw started in the office last fall after a clerkship on the Ninth Circuit; Evan Rose, ’13, now managing associate in Orrick, Herrington & Sutcliffe’s Supreme Court and Appellate practice group, served for the 2015 term after clerkships on the Ninth Circuit and in the Northern District of California; and Eric Tung, ’10, now a clerk for US Supreme Court Justice Neil M. Gorsuch, served for the 2011 term after clerking for Gorsuch on the Tenth Circuit.
In addition to preparing appeal recommendations, Bristow Fellows help the assistants to the solicitor general prepare petitions for certiorari, briefs in opposition to certiorari filed against the government, and briefs on the merits in Supreme Court cases. They assist the solicitor general and other lawyers in the office in preparing oral arguments in the Supreme Court, and each fellow is given a case to argue in a lower federal court.
The fellowship—named for Benjamin Bristow, the nation’s first solicitor general—gave Tung insights on how different parts of the executive branch function, both individually and collaboratively, and instilled a deep sense of discipline.
“It’s the ethos of the office: not being content with the superficial understanding of a case, but really digging deep and figuring out where all the counterarguments are and making sure you’ve run to ground all the avenues of research,” he said. “Thoroughness is the habit of the office.”
Upshaw said she had been surprised by how well the office’s moot courts matched the actual oral arguments before the Supreme Court and found the appeal recommendation process to be thoughtful and interesting.
“The deputies take time to be on the conference calls to explain why they don’t think appeal would be appropriate,” she said. “They really take seriously the views of the other attorneys that are involved.”
Rose said he can’t imagine “a better learning experience for a young lawyer, especially one interested in appellate work.”
“Even just attending Supreme Court arguments, which I was able to do nearly every day of the term, was a fantastic way to learn from the nation’s premier oral advocates,” Rose said. “Serving as a Bristow is an unparalleled opportunity to gain appellate litigation experience while working closely with some of the best lawyers in the country.”