concurring.
I concur in the result. I write separately to raise the question whether, following Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny, the practice of allowing peremptory challenges has become such a burden to the system that it would be better to discard it entirely.
Peremptory challenges, in their original conception, were intended to offer the opportunity to dismiss veniremen from the petit jury without assigning a reason. Both prosecution and defense were permitted to strike individual jurors arbi*77trarily, even irrationally, on the basis of irrelevant personal characteristics.
The peremptory challenge is often exercised ... on grounds normally thought irrelevant to legal proceedings or official action, namely the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.
Swain v. Alabama, 380 U.S. 202, 220-221, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965).
In Batson, the United States Supreme Court held that a defendant who is a member of a cognizable racial group could, on equal protection grounds, challenge the use of peremptory challenges to remove members of his race. In Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803,107 L.Ed.2d 905 (1990), the Court held that although a white defendant had standing to challenge the prosecution’s use of peremptory challenges to exclude blacks from the jury, his Sixth Amendment right to the fair possibility of a representative jury would not be violated had such occurred. In Powers v. Ohio, 499 U.S.-, 111 S.Ct. 1364, 1377, 113 L.Ed.2d 411 (1991), the Court answered the question not raised in Holland, holding that a white defendant may, on equal protection grounds, challenge the peremptory exclusion of black jurors.
The Supreme Court has stated that “it remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice.” Id. Ill S.Ct. at 1374. I question whether this can in fact be accomplished. Mere disparity of numbers, we have held, is insufficient to raise an inference of discriminatory use of peremptories. Yet those “who are of a mind to discriminate” will surely not make public admission of their intention. Thus it is difficult to imagine how a court could make an objective finding of a prima *78facie case. It is just as difficult to imagine how a court could cite an objective basis for rejecting any non-racial reason for the use of a peremptory offered by the prosecutor. These difficulties are compounded when the trial court’s determination is the subject of appellate review.1
Furthermore, as Justice Scalia noted in his dissent in Powers, “the precise scope of the exception [Batson] has created remains to be determined. It is unclear, for example, whether it applies to government peremptories in civil cases; whether it applies to peremptories by parties other than the government; and whether it applies to peremptories based on the defendant’s sex, religion, age, economic status and any other personal characteristic unrelated to the capacity for responsible jury service.” 499 U.S. at-, 111 S.Ct. at 1381.2 Indeed, although the Batson rule is *79grounded in the equal protection clause, it is not apparent how the traditional measure of validity in equal protection analysis — strict scrutiny, heightened scrutiny, rational basis — is to be applied, if in fact it can be applied.
It would seem, then, that we are headed for much contentious litigation over questions germane not to the guilt or innocence of the accused, but to the fairness, or apparent fairness, of the process by which guilt or innocence is determined.3 The questions, moreover, would seem to be inherently unanswerable; if the traditional purpose of peremptory challenges is to eliminate “irrational ... suspicions and antagonisms,” Swain v. Alabama, 380 U.S. at 224, 85 S.Ct. at 838, how can the courts demand rational explanations for their use? Instead of pushing our courts into the morass of trying to judge between explanations for the irrational, perhaps the entire process would be better served by abandoning the use of peremptory challenges altogether, trying cases before the first group of twelve jurors randomly chosen from the venire, and allowing only challenges for cause.
. In Hernandez v. New York, — U.S.-, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), a majority of the Supreme Court held that a trial court’s finding on the issue of discriminatory intent must be affirmed unless it is clearly erroneous. (Plurality Opinion of Kennedy, J., joined by Rehnquist, C J., White, and Souter, JJ.; Concurring Opinion of O’Con-nor, J., joined by Scalia, J.) In that case, the trial court accepted as race neutral the prosecutor’s proffered explanation that prospective Latino jurors were struck from the venire because he suspected they might not abide by official translations of Spanish language testimony.
Justice O’Connor rejected any notion that an equal protection violation in the use of peremptory challenges could be made out simply by showing that the prosecutors’s rationale might have the effect of excluding a disproportionate number of persons of a particular race. Such an approach would run
the serious risk of turning voir dire into a full blown disparate impact trial, with statistical evidence and expert testimony on the discriminatory effect of any particular nonracial classification. In addition to creating unacceptable delays in the trial process, such a practice would be antithetical to the nature and purpose of the peremptory challenge. Absent intentional discrimination violative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason or no reason at all. The peremptory challenge is, "as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136,139, 36 L.Ed. 1011 (1892) (internal quotations omitted). — U.S. at-, 111 S.Ct. at 1874.
. Later in the Term, the Supreme Court answered some of these questions in Edmonson v. Leesville Concrete Co., Inc., — U.S.-, *79111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), holding that race-based exclusion of potential jurors in a civil case violates the excluded persons’ equal protection rights and that a private civil litigant may raise the equal protection claim of the excluded juror.
. Cf. Edmonson v. Leesville Concrete Company, Inc., (Scalia, J., dissenting), — U.S. at-, 111 S.Ct. at 2095-96.