(dissenting):
I dissent because the Court makes findings of fact, continues to reject Supreme Court precedent, and fails to consider the impact and consequences of its decision on the military justice system.
Findings of Fact
The Court takes an unrealistic view of challenges, seemingly making its own findings of fact, and rejects the prosecutor’s affidavit1 setting forth unrebutted, neutral reasons for challenging a court member. United States v. Ginn, 47 MJ 236, 248 (1997) (DuBay hearing not required when affidavit is factually adequate on its face and not challenged by the opponent). And foremost, “common sense would suggest that the Government would usually wish to keep the only female member on the case of a male accused with a female ‘victim.’ ” United States v. Ruiz, 46 MJ 503, 509 (AF.Ct.Crim.App.1997).
Our review of peremptory challenges must be pragmatic. The majority, in rejecting the affidavit, states that there is a “more powerful” reason for disfavoring occupational-based challenges in the military because of the selection of the court members by the convening authority. 49 MJ at 345. However, this Court has recognized occupation as a basis of challenge for cause.2
Additionally, nearly every trial advocacy book recommends that occupation be a factor in determining the profile of the ideal juror.3
As the Supreme Court noted in Swain v. Alabama, 380 U.S. 202, 220-21, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965):
The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control____ [T]he peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable [than the challenge for cause]____ It is often exercised ... on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people sum*350moned for jury duty. For the question a prosecutor or defense counsel must decide is not whether the juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.
(Citations and footnotes omitted.)
Even when the Supreme Court overruled the allocation of burdens of production applied in Swain on a race-based peremptory challenge, it paid some homage to the important role which peremptory challenges have traditionally played in our trial system. Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (“While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures----”). In fact, only Justice Marshall, in his concurrence, advocated abolishing peremptory strikes from our trial system altogether. Id. at 102-03, 106 S.Ct. 1712. Thus, it would appear that the Court is interested in refining the peremptory challenge to conform with the Equal Protection Clause of the Fourteenth Amendment, while maintaining the challenge as separate from the challenge for cause.
The pattern that the Supreme Court has pursued in its consideration of peremptory challenge issues since Batson supports this proposition. It has carefully chosen “cognizable” groups, or those “capable of being singled out for differential treatment,” and carved them out of the peremptory challenge rule as impermissible bases for making such a challenge. Batson, 476 U.S. at 94, 96, 106 S.Ct. 1712. In Batson, for instance, that group was African-Americans, a cognizable group based on race. Later, it was a cognizable group based on gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and ethnicity, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). There is no such groundbreaking ease for occupation.
The occupation, especially of a court member, does make a difference. Ask any prosecutor or defense counsel if they had a choice between an individual with a troop command, a logistic command, or an administrative post, whom they would like to sit. The answers from both would be obvious. This is borne out by the rules on implied bias and the importance of commanders as members; the division on this Court on that issue has been evidenced. United States v. White, 48 MJ 251 (1998), and United States v. Upshaw, 49 MJ 111 (1998).
Rejection of Supreme Court Decisions
This Court has rejected the three steps set forth in Batson, refused to apply soft data as permitted by Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), and now rejects an approach taken by many federal courts to allow parties to submit their neutral reasons for a peremptory challenge— made at trial but unarticulated — by affidavit in a later proceeding. See McCrory v. Henderson, 82 F.3d 1243 (2d Cir.1996); Duarte v. United States, 81 F.3d 75 (7th Cir.1996); Kelly v. Withrow, 25 F.3d 363 (6th Cir.1994); United States v. Cartlidge, 808 F.2d 1064 (5th Cir.1987). These reasons, plus the failure of the Court in United States v. Moore, 28 MJ 366 (CMA 1989), to examine the historical backdrop to Swain v. Alabama, supra, call for reexamination of Moore and certainly not retroactive application of it. Additionally, since Moore, the Supreme Court has extended Batson to civil suits, Edmonson v. Leesville Concrete, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), and has held that gender constitutes an improper basis for a peremptory challenge, J.E.B., supra. Before long, Batson will presumably be further extended to include religion, national origin, and other classifications. But the Supreme Court has not done so yet; and we should not be so presumptuous as to do so first and extend Moore when no compelling interests have been presented to us.
Historical Backdrop
Moore failed to examine the history of peremptory challenges in the military. At both general and special courts-martial, the enlisted defendant has the option of electing trial by judge alone, trial by officer members, or trial by officer and enlisted members. Arts. 16 and 25, Uniform Code of Military Justice, 10 USC §§ 816 and 825. A general court-martial is composed of at least 5 mem*351bers, and a special court requires at least 3 members. Id.
Courts-martial in the United States date back to Colonial times. Lamb, A Court-Martial Panel Selection Process: A Critical Analysis, 137 Mil.L.Rev. 103, 115 (1992). But the peremptory challenge was introduced to the military justice system much later, at a time when Congress wanted to bring the rights afforded a military accused in line as much as possible with those in the civilian community. Prior to 1950, neither the trial or defense counsel in the Navy could exercise a peremptory challenge. See United States v. Holley, 17 MJ 361, 366 n. 4 (CMA 1984). The same was true in the Army for courts that were convened prior to 1920. Articles of War, 1920, Art. 18, Act of June 4,1920, Pub.L. No. 66-242, 41 Stat. 759, 787. However, Congress codified the right to a peremptory challenge when it enacted the Uniform Code of Military Justice in 1950. Act of May 5, 1950, Ch. 169, 64 Stat. 107. Under the Code today, each side may exercise one peremptory challenge, Art. 41(b), UCMJ, 10 USC § 841(b), and both sides have unlimited challenges for cause, Article 41(a). Specific grounds for the latter are set forth in the Manual, along with a catchall clause, RCM 912(f), Manual for Courts-Martial, United States (1995 ed.).
Furthermore, this Court has emphasized on numerous occasions that there should be a liberal-grant rule, United States v. White, 36 MJ 284, 287 (CMA 1993), and has even adopted implied bias as a basis of a challenge for cause. See, e.g., United States v. Minyard, 46 MJ 229 (1997).
Nor did Moore examine the history behind peremptory challenges in the United States that eventually led to Batson. After reconstruction, racial discrimination continued in the South by the use of restrictive laws as to jury qualification. See, e.g., Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L.Rev. 809, 827-28 (1997). Even after emancipation, there were a number of so-called “black codes” that contained racial barriers. Id. The Supreme Court struck down laws excluding racial minorities from jury service. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Yet, despite the striking down of these laws, peremptory challenges continued to be used to prevent racial minorities from sitting on juries. In both Swain v. Alabama and Batson v. Kentucky, the prosecutors’ use of peremptory challenges — six in Swain and four in Batson — eliminated all African-Americans from sitting on the jury.
This pattern of using peremptory challenges to prevent minorities from sitting on juries, which is the basis for a prima facie case under Batson, could not exist in the military because each side is limited to a single peremptory challenge.
This Court’s rejection of Batson is partially based on the assumption that the convening authority will exercise unlimited peremptory challenges and that the convening authority and staff judge advocate have improper motives with regard to the selection of members. See, e.g., United States v. Witham, 47 MJ 297, 304 (“Under these circumstances, the considerations that led us in Tulloch [infra,] to impose specific procedural requirements on the Government’s representative in responding to Batson challenges are not applicable to peremptory challenges made by the defense.”) (Effron, J., concurring). Factually, this is incorrect. I am still more bothered by the fact that what began as a presumption in Swain that prosecutors act faithfully in fulfilling their duties as officers of the court has become a presumption that military prosecutors act as part of a conspiracy to pack court panels or fix courts-martial. See Swain, 380 U.S. at 222, 85 S.Ct. 824. Is this an extension of the bad-man theory set forth by Oliver Wendell Holmes in his The Path of the Law, 10 Harv.L.Rev. 457, 459 (1897)? Furthermore, legally, there are controls to prevent such actions. This Court has “scrupulously ... demanded that convening authorities adhere to the statutory selection criteria....” Lamb, 137 Mil.L.Rev. at 138-48. Additionally, this Court has been vigilant in preventing convening authorities from trying to have an impact on courts-martial.
By extending the Moore per se rule to cases of potential gender-based discrimina*352tion, the majority requires the Government to explain nearly every peremptory challenge. Essentially, the Court’s pursuit of a vastly restricted peremptory challenge rule eliminates such challenges for the prosecution altogether. So radical a change to the Code should be enacted by Congress or the President.
Since this Court’s decision in Moore, Bat-son has been extended to apply, regardless of the race of the defendant or the race of the challenged juror, Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), to defense as well as prosecution challenges. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). These extensions of Batson show the shift away from the focus on a defendant’s right not to have a prospective juror excluded toward the rights of the jurors themselves. It is important to remember, but often forgotten, that the Supreme Court decided Batson based not only on the right of the defendant “to be tried by a jury whose members are selected pursuant to non-diseriminatory criteria,” Batson, 476 U.S. at 85-86, 106 S.Ct. 1712, but also on the right of a citizen to sit as a juror and the importance of promoting “public confidence in the fairness of our system of justice.” Id. at 87, 106 S.Ct. 1712.
The Code-required selection criteria for court-martial panels in the military justice system contains many checks and balances to eliminate these concerns. A court member’s constitutional right to sit on a panel does not need the extra protection that has been granted in Moore. Nor does the public confidence require it. Batson can be applied in toto, without risk to either.
Impact and Consequences
There are three systems of criminal law in the United States: federal, state, and military. Only the military operates a worldwide system of justice. Others are limited by geographic borders or district borders.
The majority opinion wants to ensure that the protection of rights is tested by the crucible of cross-examination during litigation. And rightfully so. That being the case, the most appropriate time to do that would be at the trial, after the opponent has set forth a prima facie case.
Such a hearing immediately after the challenge for cause would ensure that every single member of a racial or gender group is not challenged for an inappropriate reason. Just as the defendant has the right to a fair trial, these individuals have a right to sit and not be excluded on an improper basis. This Court should put' the burden on the person claiming that there is an improper use of a peremptory challenge. Yet, the majority rejects that approach.
The facts of this case point out the fallacy of Moore, and the Court compounds that error by ordering a DuBay hearing, even though the Government’s affidavit in this case was received without objection and is to date unchallenged. The Court summarily dismisses both the Government’s assertion that an occupation of an individual who sits as a court member can make a difference as to whom a party would like sitting, and the Court of Criminal Appeals’s acceptance of that rationale. See Ruiz, 46 MJ at 509. And Moore requires the party exercising the peremptory challenge to make out a prima facie case for ethnic or gender discrimination, thus rejecting the first step in Batson and Purkett.
This Court should avoid holding that the issue must be litigated at every court-martial. The issue should not be litigated unless the opponent makes out a prima facie case at trial, as in this case for gender discrimination. This Court, in rejecting the first step in Batson, relied on the Court of Military Review in Moore. There are numerous reasons why we should relook at that rationale. That Congress and the President have set forth the criteria for selecting the venire, limiting the discretion of the convening authority, and that they have limited trial counsel to only a single peremptory challenge undercuts Moore’s per se rule, rather than supports it. There is less room for improper exclusion, rather than more. United States v. Tulloch, 47 MJ 283, 286 (1997). Certainly, it is a misnomer to talk about selecting a jury. It is really a question of de-selecting a jury. The fact that the members are select*353ed by a convening authority based on criteria set forth in the Code, rather than supporting the rationale in Moore, undercuts it. When the convening authority has chosen a new panel because of “unusual results,” United States v. Redman, 33 MJ 679 (ACMR 1991), or a subordinate is attempting to stack the court to influence the outcome of a court-martial, the courts have acted to prevent an injustice. United States v. Hilow, 32 MJ 439 (CMA 1991).
One might read the majority opinion in this case, and in Tulloch and others, and reach the conclusion that there is something sinister about the convening authority appointing court members. But a step back reveals how this system as a whole balances the need for military discipline with justice and the appearance of fairness. The responsibility for leadership and setting the proper tone is with the convening authority, provided there is no unlawful command influence. Congress has shown its trust in the convening authority’s judgment; we should not displace it perfunctorily.
One has to wonder why the majority persists with its unquestioning allegiance to Moore.
. The Supreme Court in Batson chose not to prescribe a particular format for the inquiry. Batson v. Kentucky, 476 U.S. 79, 99, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ("We decline ... to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor's challenges.”). Some courts have held that an adversarial hearing is best, but is not required. See United States v. Tucker, 836 F.2d 334 (7th Cir.1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3154, 104 L.Ed.2d 1018 (1989). Other courts have permitted evidentiary hearings. See Andrews v. Collins, 21 F.3d 612 (5th Cir.1994); Kelly v. Withrow, 25 F.3d 363 (6th Cir.1994), cert. denied, 513 U.S. 1061, 115 S.Ct. 674, 130 L.Ed.2d 607 (1994); United States v. Gordon, 817 F.2d 1538 (11th Cir.1987) (evidentiary hearing held in tradition of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)); see also United States v. Garrison, 849 F.2d 103 (4th Cir.1988), cert. denied, 488 U.S. 996, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988) (affidavits submitted, ex parte review of prosecutor’s notes allowed, and adversarial hearing held, but no evidentiary hearing).
. Compare United States v. Fulton, 44 MJ 100 (1996) (holding the judge did not abuse discretion refusing to grant a challenge for cause against member because he was a victim of a crime 20 years ago or because another member was a security police officer for the command but with minimal involvement with the local security police), with United States v. Dale, 42 MJ 384 (1995) (improper not to grant a challenge for cause against security police officer); see also Williams v. State, 507 N.E.2d 997 (Ind. App.1987) (proper for prosecutor to peremptorily challenge social worker who might have a liberal view of sexual behavior which would affect her judgment in a rape case); Chisolm v. State, 529 So.2d 635, 638 (Miss.1988) (accepted prosecutor’s peremptory challenge against two prospective jurors because they were associated with radio and television statements that broadcast anti-law enforcement programs).
. See, e.g., R. Carlson & E. Imwinkelried, Dynamics of Trial Practice: Problems and Materials 74 (1995) (2d ed.1995); M. Fontham, Trial Technique and Evidence 52 (1995); T. Mauet; Trial Techniques 29 (4th ed.l 996).