The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, Vice President Mike Pence had an op-ed in the Wall Street Journal praising the "courage" of Republican Senator Edmund G. Ross of Kansas, who broke with his party during the impeachment trial of President Andrew Johnson. Drawing heavily on President John F. Kennedy's profile of Senator Ross in Profiles in Courage, Pence praises the willingness of a Senator to oppose a "partisan impeachment."
Yet as Gerard Magliocca explains at Balkinization, there was nothing particularly courageous about Senator Ross' vote. Rather, Magliocca explains, Ross was something of a "coward."
The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson's determined opposition. (Go and read Bingham's closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)
Could a person of principle have voted for President Johnson's acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.
There are serious arguments that most of the charges upon which the House impeached President Johnson were mistaken, particularly insofar as they centered on Johnson's violation of the (almost certainly unconstitutional) Tenure in Office Act, which purported to prevent the President from removing certain government officers without Senate approval. Yet there is little reason to believe a principled concern for protecting executive power motivated Senator Ross, and there were many sound reasons to urge President Johnson's impeachment, particularly his efforts to undermine Reconstruction.
UPDATE: Seth Barrett Tillman takes issue with Magliocca's account here.
Magliocca has more on Bingham's role in the Johnson impeachment in his book on Bingham, America's Founding Son, and Brenda Wineapple discusses the case against Ross more fully in her book, The Impeachers.