Biden saw Trump’s attack on the judge in the Trump University fraud case as an attack on separation of powers and an independent judiciary. Oh, and it was racist too, he added.

Since he was speaking before the American Constitution Society, this focus was understandable. But there is another way of looking at it.

First, Biden:

Biden at American Constitution Society. Image: White House video.

“His [Trump’s] conduct is literally undermining and threatening and doing damage to the constitutional imperative of an independent judiciary. … what does the court have? It has its reputation — that it is in fact impartial that it is in fact prepared to rule on the merits. it is not subject to intimidation. That’s a precious, precious, precious commodity that in our separation of powers the court can not afford to have undermined. … our founders created an independent judiciary because as Hamilton wrote in Federalist 78, quoting Montesquieu, ‘There is no liberty if the power of judging is not separated from the legislative and the executive powers.’”

Liberal pundits love these pieties, though they are of the “if only” variety. (And don’t pay too close attention: ideology at work.) Yes, Trump does attack Biden’s ideal of an independent and fair judiciary, but let’s remember that this ideal is a poor description of our legal system … or the prisons wouldn’t be full of the poor while the routine and normal crimes of the wealthy go unpunished. Lock some poor guy up for drug possession, but let the wizards of wealth who crashed the financial system collect their bonuses and pass their fines on to the stockholders. Not to mention the other big story of the week, Judge Aaron Persky sentencing the Stanford rapist Aaron Brock to a few months in county jail. … Persky too was an athlete at the elite university and could identify with the suffering of the privileged young man.

Elizabeth Warren was more “on the money” than Biden in her response to the Trump attack.  Sure, fight for an independent judiciary, but understand the context:

Photo by Tim Pierce. CC BY-SA 3.0

“Donald Trump chose racism as his weapon, but his aim is exactly the same as the rest of the Republicans. Pound the courts into submission to the rich and powerful.”

…

“Year after year, for more than thirty years, powerful interests have worked to rewrite the law and tilt the courts to favor billionaires and giant corporations.

…

“The goal is to tilt the game, and it’s working — 86% of President Obama’s judicial nominees have worked as a corporate attorney, a prosecutor, or both, while less than 4% have worked as lawyers at public interest organizations.”

The night I heard Biden’s speech,  I was enlightened by the great historian M. I. Finley as I read his Politics in the Ancient World. He deflates the admiration of Roman law then nearly universal among classical scholars:  “…the mould of Roman law, as of every other legal system examined by historians, was an instrument and a reflection of society and therefore of social inequality.”  The classical scholars reduced the Roman judiciary’s problems to corrupt magistrates (the “few bad apples” framing we know so well). Finley: “Tacitly [these scholars] thus contribute to the survival of the old mystique about the law as something that stands above and outside society and its realities, with its own essences, its autonomous logic, its independent existence.” An ideal system, like the Constitution with its separation of powers guaranteeing an independent judiciary.

So yes, let’s fight for an independent and fair judiciary, but also remember that “the system is rigged” and forms or structures in themselves guarantee nothing — nothing that can’t, in reality, be shaped by the people who have power to use it for their purposes.

(Finley, known for his iconoclastic and authoritative work on ancient slavery, was fired by Rutgers after he defied the House Un-American Activities Committee. He probably thanked them: he moved to England, where Cambridge University appreciated his brilliance and he was even knighted. I hope you all read The World of Odysseus, itself a classic and still one of the best introductions to Homer and the early Greek world.)