Mensch on the Bench

Mensch on the Bench

by James Ostrowski by James Ostrowski

I have not hesitated to criticize judges in the past and will do so even more severely in the very near future. I am tough on judges because my father was one for thirty years and I judge the rest by the high standards he set for himself. One of the few who has achieved that level of integrity, industry, wisdom and independence is the Honorable John T. Elfvin, a federal trial court judge in Buffalo. Naturally, the political and legal establishments are after him. Naturally, he doesn’t care.

Judge Elfvin is in the news this week because of his decision not to sentence a drug dealer (free market pharmacist) to 240 years in prison. Elfvin was forced by law to sentence the man to at least thirty years. Even this Stalinist penalty mandated by the dunderheads in Congress was not enough for the strange and scary John Ashcroft. He wants the million black man march to prison to continue. His flunkies appealed.

The Second Circuit, which has seen way better days, reversed and ordered Elfvin to state his reasons for not sentencing the man to 240 years. Duh, Elfvin said, in effect, to the Buffalo News after hearing the decision: "How can you send a man to prison for 240 years? That’s terrible. It makes no sense. . . . Obviously, it’s crazy. . . This comes right out of Washington. Ashcroft is after me. Congress is backing him, and the Supreme Court has also backed the sentencing guidelines." (So much for Republicans getting the government out of our lives.)

Amazing! A sitting trial judge takes on his own appellate court, the Attorney General, Congress, and the Supreme Court all at the same time! Think about the courage that takes. It’s the bravest thing I have ever seen a judge do. A real mensch takes on a bunch of munchkins. A thing of beauty.

[Let me note parenthetically here, how the clueless Ashcroft is still fighting the failed drug war that probably funneled millions into the hands of the terrorists who attacked America on 9/11. Jack, why don’t you indict Colin Powell for giving $43 million to the Taliban in the summer of 2001?]

Judge Elfvin is the model of a superior judge. First, he got there on merit, not connections. He has a first-rate mind and his meticulous trial notes which allow him to quickly review previous testimony, are legendary. He works hard. I have tried cases in his courtroom on two different Saturdays. He is 86 years old now and could retire with full pay but he keeps working full-time. He maintains firm control over the courtroom without ever raising his voice. The lawyers respect him too much to ever give him a problem.

Contrary to what some might think, his age is a plus. Judges should be old. Age brings wisdom and perspective and reduces that great temptation for judges: ambition. Buffalo has installed a lot of young judges recently. They’re on the make. Watch out. Judge Elfvin, unlike the Young Turks, can always be relied on to seek out neutral justice in each case, without any hidden agendas, axes to grind or extraneous political motives.

Judge Elfvin is a patrician, a member of what Jefferson called the "natural aristocracy"; the aristocracy of merit, not connections. Jefferson wrote to Adams: "there is a natural aristocracy among men. The grounds of this are virtue and talents." It is precisely those who lack merit who need the connections. Judge Elfvin graduated from Cornell before that institution was captured by political correctness; did electrical engineering for General Electric; served under Admiral Hyman Rickover; graduated from Georgetown Law School; clerked for the U.S. Court of Appeals in D.C.; and worked as an associate for Cravath, Swaine & Moore when that was the top firm in New York.

Judge Elfvin is the prototype for selecting judges: reject those on the make for power and those most skilled at manipulating the connectionocracy, in favor of those who naturally — by their own inherent qualities — command the respect of their communities and the bar.

Judge Elfvin. Don’t ever retire!

December 22, 2003

James Ostrowski is an attorney practicing in Buffalo, New York. See his website at

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