Summer state work period. Everily day countless terrorists are plotting their next attack against the United States. There are measures that we can take today that will help make americans safer at home and while traveling from destinations abroad. Several of those measures are included in the f. A. A. Bill that we passed with over 90 votes in the United States senate. Madam president , today i call again on the house of representatives to take up this bill so that we can continue our work to keep americans safe. Madam president , i yield the floor. I suggest madam president , before i yield the floor, i have seven unanimous consent requests for committees to meet during todays session of the senate. They have the approval of the majority and minority leaders sm. And i ask unanimous consent t these requests be agreed to and that these requests be printed in the record. The presiding officer without objection. Mr. Thune madam president , i ask unanimous consent that the Senate Recess until 2 15 p. M. And that the time during the recess be charged to the proponents side of h. J. Res. 88. The presiding officer is there objection . Without objection. The Senate Stands in recess the Senate Stands in recess the house has already approved the resolution. Senators have used about two of the allowed 10 hours of debate on the bill. They are now in recess for the weekly party lunch meetings and live coverage when they come back to 16 eastern here on cspan two. This sunday night on q and a, u. S. Senate historian betty talks about various events in Senate History and the Worker Office does. I came in june 1998 as a newly minted senate historian. My colleagues dick baker and don mickey said to me its going to be nice and quiet, we have an election coming up, you half whats a time to settle in and read and get comfortable in your job and within a few weeks the house decided to impeach bill clinton and we got very busy very quickly and had to do a great deal of research on trials. We had not had a president ial impeachment since 1868 and the Senate Leaders at that time, trent lott and tom daschle wanted to follow historical precedent as much as they could sunday night at the eastern and pacific on c stands q and a. The Supreme Court this week ruled in favor of a black georgia death row inmate, finding the prosecutors unlawfully excluded potential jurors were black from the mans trial nearly 30 years ago. The ruling was 721, Justice Clarence thomas was the sole dissenter. The oral argument from the case now, this is about an hour. You will hear arguments first this morning in case 1483 49 foster versus chapman. Mister wright. Mister chief justice, it may have please the court, the prosecutors in the state came to court on the morning of jury selection determined to strike all the black respected jurors mister bright, maybe you could address first the question we raise on friday with respect to which court should be directed to . Yes your honor. We filed this position originally to the Supreme Court of georgia and of course, this court in sears versus upton had issued tertiary in 2010. To theSupreme Court. In a similar situation. It appears to us from looking at this over the weekend that r. J. Reynolds tobacco co. Versus Durham County which the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits then the rick went to the state Supreme Court. And the Georgia Court while it has ruled in statute and his own opinions that are not totally in harmony with one another, the rule nonetheless is that the certificate of probable cause was denied in this case is to be granted if there is arguable merit to the case. You think that affects the scope of our review question mark in other words, are we addressing whether theres arguable merit to the claim or are we addressing the claim on its own merits . I think what this court has done in all these cases is applied yields versus a mac or look through to the last recent decision and that would be the decision of the Habeas Corpus Court in georgia. Typically, the Habeas Corpus Court ruled an application is made for certificate of probable cause to the georgia Supreme Court and that is often denied. I merrily it is denied as it was in this case. I really dont understand that. You say we would be reversing the georgia Supreme Court, not the habeas corpus, right . And all of the georgia Supreme Court held is that there was no arguable basis for its accepting review. So if we reverse that decision, we tell the georgia Supreme Court you are wrong, there is an arguable basis for your accepting review so we ought to remand to that court, requiring them to accept review, it would seem to me. How can you reverse them on an issue they never considered . Well, thats what evan and r. J. Reynolds. There you had an identical situation where you had an intermediate Appellate Court that had ruled and then the North CarolinaSupreme Court denied review and the question was do you issue the writ to the intermediate Appellate Court or to the North CarolinaSupreme Court . This court decided in Justice Blackmun writing for the court said we want to give practitioners, we want to end the confusion about this and so it goes to the soup state Supreme Court. Theres no difference in our situation here and the situation that r. J. Reynolds. What youre saying in that case or in other cases and if so, which other cases . That in that situation we nonetheless address the reasoning of the intermediate court . Is that what youre saying peace. You did in sears versus upton, a case out of georgia, us court 945 in 2010. Thatwas the Supreme Court of georgia but came up in exactly the same posture in our case. Is there an argument that the petition for tertiary court to go to the trial court . I now are statute says it goes to the highest court in which review could have been had i think is the statute there which sounds like the georgia Supreme Court. On the other hand, as Justice Elliott said they direct their attention to the issue of the floor. Im not sure, to me as an option to go to the georgia trial court or is that incorrect . What this court has said both in the r. J. Reynolds case and that was followed in brady versus North Carolina yesterday year, 2000 theme since this year in which once again there was an intermediate Court Decision denied by the North CarolinaSupreme Court. I can remember all the way back to 1960 there was thompson versus louisville where is this boy was to the court in louisville kentucky because no court in kentucky could take the case because the fine was less than 20 but i think these cases much more recent, decided by the court in 1986 and this year. Sitting together, two rules you say weve established. One is does blackmun seek to end the confusion for the issue to be addressed to the Supreme Court and then you said we have cases, both cases. If the Supreme Court has said justice denied, nothing more than denied, we lift that to the last reason decision so these are both decisions of this court and thats what youre relying on. Well, they are not mutually exclusive. This court can look back through to the last recent decision in making its decision in this case and i believe thats what it should do. But at the same time, the courts opinions appear to us on the Quick Research we did over the weekend on this that r. J. Reynolds and the subsequent case say that roy was issued to the Supreme Court and we listened that way and then when the case was docketed that it was listed at the lower court was the superior court at the time. What is the supreme Supreme Court road and in a short opinion said we are not going to determine whether there was in fact, the only issue we are going to determine is whether theres any arguable merit to this. Then you say the whole issue of whether it was a correct application is the issue that we have to decide. I think in r. J. Reynolds, i think thats the court law, yes. Could i ask you a question about another preliminary issue before we get to the underlying question in the case. The superior court said on page 175 of the joint appendix that the issue of the batson violation was not reviewable based on the doctrine of res judicata and it later said and this is 192 of the joint appendix, that it will review the batson claim as to whether the petitioner has shown any change in the facts sufficient to overcome the res judicata so far. If you put those two together, you could argue that the superior court decided only a question of state law, namely whether the situation here was such that there could be review of the batson claim. What is your response to that . The state doesnt argue that and i think the reason for that is because the court said we are. The court is going to address step three of batson claim in the batson claim is without merit. Is a question of federal or state law as to whether or not the petitioner has shown a change, in fact sufficient to overcome the race the connemara on page 192, language that Justice Alito coated. Is that the state law question. Thats the state law question and here court decided it but. The state law question the resulting issue, what do you have to argue . Id say its a federal question. In order to decided , its exactly like state versus oklahoma where the court, the Oklahoma Court had to decide the federal question in order to decide whether that jurisdiction over the issue. And this court held in eight that where the court has to decide the federal issue and it did in this case, it clearly decided the federal issue and found that the batson claim have no merit so it is decided, the federal issue andtheres no contest about that. Explained to me why deciding the federal issue was essential to its deciding the state received a cottage issue. Because it claimed the question as being that it would look at the batson versus kentucky claim and that if there was merit to that claim then the court would grant the read on it. On the other hand and found there was not merit on it then. You think it was same whether theres a judy, or not depends on whether the new claim has any merit . Thats a very strange application it seems to me was whether they were changed fax sufficient enough. The judge was that you can bring an issue thats been due to gated before direct appeal in haiti us if it would produce a different result. Right, if the facts are such that it would produce a different result. Does the court, in your judgment due to review, isnt it true that it basically was going to do that three of the batson charles. Thats what thecourt said, yes. Then a ruling on the merits. The court said the batson claim is without merit. That seems like a ruling on the merits to me. I think it said. After considering these facts, yes. After considering these facts the court said that the claim was without merit. The court said that it would reach on the basis of new evidence presented so they did it all over and i guess we must take that as what happened. It did not apply res judicata. And Habeas Corpus Court said that the resolution of the state procedural law questiondepends on a federal constitutional ruling , the state law is not independent of the federal claim and this court has jurisdiction, thats on. I dont want to belabor the point too much but are you belaboring that georgia res judicata law is this. Someone comes up with any new fact, the thinnest new fact, that is sufficient to write up the race judicata bar and allow the court to get to the merit of the claim. Is that your argument . Thats your understanding of georgia race judicata law . My understanding that would be sufficient enough that the court doeswhat it did in this case and rule on the merits of the issue and thats what happened here. This was not a matter of adding one more leaf to the basket. Why is that in conjunction with the will. To judge three and scalias question, why is that federal law . The court decided that issue to decide the underlying state law issue. And i think eight is pretty clear on this and i mentioned to the courts, since the state didnt raise this even in theiropposition or in the brief , its not brief before this court but i think thats the deciding case on this. Thanks console, i think we have your argument on the point. Thank you very much. If i could just say what happened here was that the prosecutors had identified the africanamericans by race , they had waited them against each other in case it came down to having to select a black juror. The prosecutor said the reason of concentrating on the black jurors that you had informed them you would present the batson challenge and therefore it was necessary for them to see if there was a race neutral grounds for disqualifying. To answers that justice ginsburg. What the lawyers did here, visual arts at practice here for a long time. They said the prosecutor always strikes all black from the jury. We think theyre going to start all black from the jury in our case but the Supreme Court of the United States decided that versus kentucky and eight we asked the court not let that happen in this case. Of course the prosecutor is going to avoid the batson challenge and not discriminate, that would have been the first thing but secondly, with regard to the information thats collected here, it doesnt seem like its information just to exercise strikes when they say if it comes down to having to take an africanamerican or in another place miss there might be okay and the District Attorney himself said, maryland balance as the most potential of the black prospective jurors. In other words, the blacks were taken out of the picture here. They were taken and dealt with separately and over the weekend, the jury submitted questioning that ended on a friday and the judge said over the weekend you got your chance to decide who youre going to strike and they know exactly who they were going to strike because the jurors are listedin order , the state goes first and if it accepted juror then that statement is on, theres no going back. Theres no striking people here and there. They develop three strike lists and one of those cyclists was a list that had a definite no. These people are absolutely not going to be on this journey. There are only six jurors listed on the list of definite nose and the first five are africanamerican. The six is a juror who made clear during the process that she did not impose the Death Penalty under any circumstances, the state moved to stryker for cause. The judge erred in not granting that strike but even she writes behind the black jurors in terms of the priorities that the prosecution had for striking. At the time, Mister Lanier said they were striking the jurors because of race, they were striking them because theywere women. And i guess three out of the four africanamericans were who were struck were women. How does that explanation, how that kind of falling out of the case. How had affecting now. He did accept women though as well. Bear with me just a moment. The gev that beth applied to women but the court did say in jad could be used as a pretext, women for striking on the basis of race. In this case, the prosecutor struck three white jurors and then you struck the three black jurors, the three black women and the three white women. Mister bright, Mister Lanier entered yes when he asked during the trial when he was asked whether he had done, oh no. It was on the motion for a new trial hearing whether he had done the same extensive background checks on all the jurors, white and black. Did you find any evidence of that extensivebackground . What thats talking about and the investigator said this in his deposition, was the race coded color list, those first four lists you have in the joint appendix in which blacks are marked with a b and highlighted in green with a marker up at the cornersaying green designates black. Your understanding of this statement is that he had only done an extensive search on the blacks on thelist. Its clear mister lundy had prepared a list, notes in which he talked about just the black jurors in the case and i think the state concedes in its brief that the focus was on the black jurors. During the trial, the defense counsel when he made his initial batson challenge, not in the papers but at trial, did he againsay this was part and parcel of the prosecutors pattern . He didnt say that but i point this interesting thing out. When they discussed the batson motion before trial, there was never a suggestion that there wouldnt be a batson hearing. Everybody knew what was going to happen, that all the blacks would be struck and they have a hearing after that happened but the defense had basically put their motion in writing and relied on that throughout the jurisdiction. I wassurprised that we didnt hear about this preparation for batson hearing until the hades. The defense didnt move for the prosecution notes and the prosecution opposed that. There were very strict in not giving up their notes. Then when the prosecutor testified on the motion for a new trial, they