Appellant Leslie appeals his conviction for conspiring to distribute narcotics and possessing narcotics with intent to distribute them, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rejecting his other complaints, a divided panel of this Court sustained Leslie’s contention that the district court erred by failing to inquire into the prosecutor’s motives for peremptorily challenging black venirepersons, although there was no claim or showing that the challenges were made for purposes unrelated to the outcome of the particular case being tried or were any part of a systematic practice of excluding blacks from jury service. 759 F.2d 366 (5th Cir. 1985). The panel majority rested its holding in this respect “upon our supervisory power over federal district courts and federal prosecutors.” Id. at 374. This Court, en banc, disagreeing with the panel’s resolution of the peremptory challenge issue, affirms Leslie’s conviction.1
We hold that where in a given trial the prosecutor’s peremptory challenges are made for the purpose of procuring a jury more likely than otherwise to convict in that particular case, and are not made for purposes unrelated to the case being tried or as any part of a systematic practice of attempting to exclude blacks from jury service, the challenges are not rendered improper because they are made in whole or in part on the basis of the group affiliations, including race, of the challenged venirepersons. We further hold that where, as here, there is neither claim nor prima facie showing that the prosecutor’s peremptory challenges were exercised either as any part of a systematic practice of attempting to exclude blacks from jury service or other than for purposes of the particular case being tried, it is a misuse of whatever supervisory authority we may have in the premises to require judicial inquiry into the prosecution’s reasons or motives for its peremptory challenges.
The facts of this case, and the Supreme Court’s opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), constitute the framework of our analysis.2
I.
Context Facts
Appellant Leslie was tried in New Orleans, along with Fernando Giron, a Honduran, on charges of distributing and conspiring to distribute cocaine. After the first day of trial, Giron pleaded guilty and testi*543fied for the government. Other significant witnesses for the government were Claude Griffin, who testified that he had acquired cocaine from Giron and distributed it to Leslie, who then redistributed it, and Thomas Gray, who had transported cocaine from Houston to New Orleans for Griffin, received money from Leslie in exchange for the drugs, and then given the money to Griffin. Giron, Griffin, and Gray are white; Leslie is black.
The record contains no transcript of the voir dire or jury selection process, although it does include the jury list showing those removed for cause and by peremptory challenge. When the court completed excusing venirepersons for cause, the jury panel had been reduced to twenty-eight, of whom six were black. The government used its six peremptory challenges to remove these six blacks, and the defense used its ten peremptory challenges to remove ten whites. Of the four persons comprising the alternate pool, one was black; the government used its alternate peremptory to remove this individual, and the defense used its alternate peremptory to remove a white from the alternate pool. The procedure and order of exercising peremptory strikes are not reflected in the record.
After the peremptories were completed, Leslie’s counsel moved for a mistrial. He complained that the government used its peremptories to remove all the blacks from the jury and alternate pools. The Assistant United States Attorney stated that those challenged were “not struck on the basis of race” and offered to give “an in camera reason,” which the trial court declined. The trial court then inquired of Leslie’s counsel why he was entitled to mistrial, to which counsel responded:
“Well, the last Supreme Court decision on the subject said that peremptory challenges without demonstrating a pattern or practice, peremptories which strike all blacks, are within the system. But that doesn’t eliminate the Court’s discretion.
“And in this case, Mr. Leslie is a black man in this community; he has standing in the black community. And without a single black on that jury, there is no way to communicate through peers in this community.”
The trial court denied the motion for mistrial, and Leslie’s counsel objected stating, “there is no apparent reason, other than race, for the striking.”
The matter was not raised again in the trial court, either by motion for new trial or otherwise. No attempt was ever made to analyze or comment on the voir dire. Nothing was said concerning the composition of the venire panel except in terms of who on it was black and who was white. Leslie never claimed that anything similar had ever before occurred or would likely occur again, or that there was any attempt to utilize peremptory strikes for purposes other than the outcome of the case being tried.
In his initial appellant’s brief, Leslie casts his complaint in the following context:
“Eugene Leslie, a prominent black fight promoter and trainer in the City of New Orleans, was tried by an all white jury ... on cocaine charges____ No significant witness against Leslie was black____
“The government’s theory was that Claude Griffin ... had bought cocaine from a Honduran, Leslie’s co-indictee Fernando Giron, in Houston, Texas. Griffin sold a part of the cocaine to defendant Leslie____
“FBI agents ... intercepted phone calls between Griffin and Leslie. These telephone calls did not mention cocaine. The calls, however, sounded suspicious to FBI ears since Leslie had repetitively and in varying forms asked Griffin whether there was ‘anything yet.’
“The defense presented an entirely innocent explanation for the style of the conversations with Griffin: it was typical for Leslie, a black man, to speak in shorthand about things which he and the other individual in the conversation understood____
“Leslie explained the true meaning of his conversations with Griffin in the fol*544lowing manner. Leslie had first met Griffin in Griffin’s capacity as an airconditioning repairman and installer. They struck up a friendship; Leslie visited Griffin, and Griffin visited Leslie. At Griffin’s house, Leslie met the co-indictee, Fernando Giron, who was from Honduras ____ Griffin and Giron talked about young Honduran fighters, and the possibility of their coming to the United States for training; Leslie, ever ready for the opportunity to train a champion, was interested in developing that connection.
“Along with the suspicious conversations of Leslie with Griffin, the FBI had recorded similarly suspicious conversations by Griffin with another prominent black man in the city, the funeral director Alton Glapion. Glapion was a closer friend of Griffin’s than was Leslie. Griffin had known Glapion for 20 years, Leslie for under two____ Griffin was then involved in major business dealings with Glapion and Glapion was ready, willing and able to put up his funeral home for bond for Griffin; Leslie on the other hand owed Griffin money____ It was the defense theory of the case ... that when Griffin said the oil conversations with Leslie were about cocaine, while the oil conversations with Glapion were about oil, ... that he had made a self-preserving choice; Griffin had given up the innocent Leslie to protect the also innocent Glapion in order to preserve his credibility, and thereby to save himself and his family, who were indicted along with him, from certain annihilation by the government.3
“... To acquit the defendant Leslie, a black fight promoter from New Orleans, the jury had to be open to the possibility that Leslie had spoken to Claude Griffin, the principal prosecution witness, in a shorthand that was not code for cocaine. There was no black juror to explain to the rest of the jurors in their deliberations that there was nothing irregular about Leslie’s speech patterns; to mediate between Leslie’s lifestyle and that of the white jurors; or to evaluate the credibility of the defense from the black perspective.”
Fairly construed then, Leslie has not complained that the prosecution’s exercise of peremptory challenges here was motivated by anything other than an attempt to enhance the chances that the verdict in this case would be favorable to it. There is no allegation or suggestion that these strikes were any part of an effort to prevent black citizens from serving on criminal juries, or were motivated by any personal desire on the part of the Assistant United States Attorney not to associate with blacks. Rather, Leslie complains that, because of the peculiar factual setting of this case, he needed one or more black jurors to “translate” his speech and conduct to the rest of the jury; in effect, to vouch for his explanation of the suspicious conversations and activities.4 There is no suggestion of complaint that the prosecution did other than make its strikes in an effort to procure, from among those summoned and not disqualified, a jury which, under the facts of this particular ease, would least likely be partial to Leslie, by excluding blacks as individuals either more prone to adopt a *545role of translator, and then spokesman, for Leslie or perhaps as being more likely susceptible to influence on behalf of one so prominent in the black community. This is also apparent from Leslie’s statement in his brief, repeated in substance at panel oral argument, that:
“Indeed, there is no pattern or practice in the United States District Court for the Eastern District of Louisiana which could be proved up by a systematic and exhaustive examination of the peremptory practices of the prosecutors. Black jurors are no less prosecution oriented in most cases than are jurors of other races.”
II.
Discussion
Accordingly, the question here is not whether the prosecution may peremptorily challenge blacks in an effort to deny citizens of that race the right and privilege of serving on criminal juries. Nor is it what character of proof suffices to sustain such a claim, prima facie or otherwise. No such claim has been fairly presented. Rather, the issue here is whether the prosecution may take race or similar group characteristics into _account when it exercises a peremptory challenge for the sole purpose of procuring a jury least likely to be partial to the defense, in light of the discrete facts of the particular case being tried.
Swain v. Alabama
The resolution of this issue is controlled by the analysis in part II of the Supreme Court’s opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). As in this case, the prosecution in Swain peremptorily struck all six black venirepersons on the jury panel, with the result that the black defendant was tried by an all-white jury.
So far as it concerned peremptory challenges by the prosecution based on race or similar group membership, Swain distinguished between and dealt separately with two types of such challenges: first, those made for the purpose of prevailing in the particular case being tried, which it addressed in part II; second, those made “for reasons wholly unrelated to the outcome of the particular case on trial ... to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population” (id. 85 S.Ct. at 838), which it considered in part III. The distinction between the two categories of racially based peremptory challenges is likewise reflected in the description of the second type as being the kind the prosecution would make “whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.” Id. at 837. In Swain part II, the Court held that racially based peremptory challenges of the first kind were a proper and a traditional part of the jury system as known to the common law and American jurisprudence. In its part III, the Swain Court strongly intimated that racially based peremptory challenges of the second kind were improper, but did not expressly so rule since it held that no sufficient showing had been made that the challenges in question were of that kind.
Justice Goldberg, joined by Chief Justice Warren and Justice Douglas, dissented. Id. at 840-50.5 The dissent, however,\ found no fault with part II of Swain or itsl holding respecting the first type of race-¡ based peremptory challenge. Rather, the dissent took the view that a proper prima facie case had been made that the race-based peremptory challenges were of the second kind. The dissent emphasized that the Alabama venire selection system, which relied in large part on subjective choices by individual jury commissioners, produced venires in the county of trial that averaged ten to fifteen percent black, although blacks constituted twenty-six percent of the population available for jury service; and *546that “this method of venire selection cannot be viewed in isolation and must be considered in connection with the peremptory challenge system.” Id. at 845. They particularly noted “it is undisputed that no Negro has ever served on any petit jury” in the county. Id. The dissent summarized its views by stating:
“The holding called for by this case, is that where as here, a Negro defendant proves that Negroes constitute a substantial segment of the population, that Negroes are qualified to serve as jurors, and that none or only a token number has served on juries over an extended period of time, a prima facie case of the exclusion of Negroes from juries is then made out; ... and that the State wholly fails to meet the prima facie case of systematic and purposeful racial discrimination by showing that it has been accomplished by the use of a peremptory challenge system unless the State also shows that it is not involved in the misuse of such a system to prevent all Negroes from ever sitting on any jury. Such a holding would not interfere with the rights of defendants [emphasis in original] to use peremptories, nor the right of the State to use peremptories as they normally and traditionally have been used.
“It would not mean ... that Negroes are entitled to proportionate representation on a jury____ Nor would it mean that where systematic exclusion of Negroes from jury service has not been shown, a prosecutor’s motives are subject to question or judicial inquiry when he excludes Negroes or any other group from sitting on a jury in a particular case. Only where systematic exclusion has been shown, would the State be called upon to justify its use of peremptories or to negative the State’s involvement in discriminatory jury selection.” Id. at 849 (footnote omitted; emphasis added).6
The Eighth Circuit has observed, “The very heavy burden of proof set forth in Swain has been extensively criticized by commentators.” United States v. Childress, 715 F.2d 1313, 1316 (8th Cir.1983) (en banc), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). Relatedly, it has been said that “Swain obviously furnishes no protection whatever to the first defendant who suffers such discrimination in any given court.” People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 909, 583 P.2d 748, 767 (1978).7 However, what these concerns are directly relevant to is the proof required to sustain a claim that the prosecution’s exercise of peremptory challenges is of the second Swain kind. Here, as noted, we are not concerned with how such a claim is or should be proved, because no such claim has been fairly presented. What we are concerned with is a claim of racially based peremptory challenges of the first Swain kind.
*547We turn then to Swain part II for an understanding of the holding — from which no Justice on that Court, then well past a decade under the leadership of Chief Justice Warrne, dissented — that this sort of peremptory challenge is valid. Justice White commenced by stating that the defendant’s motion “seeking as it did to invalidate the alleged purposeful striking of Negroes from the jury ... was properly denied.” Id., 85 S.Ct. at 831. He noted that “there is merit in” the state’s contention that the system of peremptory strikes, described as “challenges without cause, without explanation and without judicial scrutiny,” justified “striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes.” Id.
The opinion traces the over 600-year-old history of the peremptory challenge at common law, observing that in one form or another “[pjeremptories on both sides became the settled law of England” and that “[t]his common law provided the starting point for peremptories in this country.” Id. at 832. The opinion further traces the continuous existence, from the beginnings of this nation, of some form of peremptory challenge, in all trials of serious offense, by both prosecution and defense in the federal system and in all or nearly all of the states. Id. at 832-34. The majority took note of the existence of explicit statutory recognition of the government’s right of peremptory challenge in federal courts ever since 1865. Id. at 832-33. Although he observed that the United States Constitution does not mandate the availability of peremptory challenges,8 Justice White stated that “[t]he persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” Id. at 835.9
The opinion continues by noting:
“The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.” Id. at 835.
It also explains that “the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable” than is required for challenges for cause. Id. at 836.10 Another function of the peremptory is that it “facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause.” Id. at 835. The state is as fully entitled to these benefits as the defendant:
“[T]he view in this country has been that the system should guarantee ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.’ Hayes v. State of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 [1887].” Id.
As to use of peremptories on the basis of the racial or other group-related, as opposed to individual, characteristics of the challenged venireperson, Swain states that:
“It [the peremptory challenge] is no less frequently exercised on grounds normally thought irrelevant to legal proceedings *548or 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. It is well known that these factors are widely explored during the voir dire, by both prosecutor and accused____ This Court has held that the fairness of trial by jury requires no less____ Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.
“... In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory ...
“... The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” Id. at 836-37 (footnotes omitted).
This language is, of course, wholly at odds with the theory of such cases as People v. Wheeler, supra, and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, 514-15 cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), that a venireperson may not properly be peremptorily challenged because of characteristics thought to be peculiarly common to any “cognizable” group of which she is a member, as distinguished from her assumed uniquely individual (or noncognizable group) characteristics. Plainly, the Supreme Court in Swain has held that a prosecutor may peremptorily challenge on racial (or similar group) grounds so long as he does so on “considerations related to the case he is trying, the particular defendant involved and the particular crime charged.” Swain, 85 S.Ct. at 837.
In sum, as the Eighth Circuit said in United States v. Carter, 528 F.2d 844, 850 (8th Cir.1975), cert. denied, 425 U.S. 961, 96 S.Ct. 1745, 48 L.Ed.2d 206, (1976), “the Supreme Court in Swain made it clear that race or other group affiliation is in fact a legitimate ground for challenge in an individual case.11
*549 Sixth Amendment
It has been suggested that Swain is no longer authoritative, or at least is not authoritative with respect to cases in which the sixth amendment is implicated, because it was decided some three years before it was first held, in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the sixth amendment applied to the states.12 In this connection, it is claimed that the racially based peremptory challenges of the kind sustained in Swain part II violate the sixth amendment’s “cross-section requirement,” particularly as reflected in cases such as Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). See McCray v. Abrams, 750 F.2d 1113, 1124-30 (2d Cir.1984), reh’g en banc denied, 756 F.2d 277 (1985), petition for certiorari pending, — U.S. -, 105 S.Ct. 2318, 85 L.Ed.2d 837 (1985).
We reject this analysis. This Court has consistently applied Swain in federal prosecutions where the sixth amendment has obviously always been fully applicable. Thus, we stated in United States v. Williams, 446 F.2d 486, 488 (5th Cir.1971):
“Appellant next contends that he was denied his constitutional right to a trial by an impartial jury. Appellant, a Negro, was tried by an all-white jury____ He objects, however, to the fact that although there were three Negroes on the twenty-eight-man jury venire, all three were peremptorily stricken by the Government prosecutor without cause or explanation, in violation of his Sixth Amendment Rights. Such a contention conflicts with the holding of Swain v. State of Alabama ... in which the Supreme Court upheld the system of peremptory challenges, explicitly finding merit in the State’s argument that the system affords ‘a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial.’ ”
Other decisions of this court applying Swain in federal prosecutions include: Davis v. United States, 374 F.2d 1, 5 (5th Cir.1967); United States v. Pearson, 448 F.2d 1207, 1213-14 (5th Cir.1971); United States v. Carlton, 456 F.2d 207, 208 (5th Cir.1972) (per curiam). We have continued with like holdings after Taylor. See e.g., United States v. Durham, 587 F.2d 799, 801 (5th Cir.1979); United States v. McLaurin, 557 F.2d 1064, 1076 (5th Cir.), cert. denied sub nom. Hamilton v. United States, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1977). In affirming the conviction in McLaurin, we stated:
“They [appellants] argue that ... the government exercised its peremptory challenges in a racially discriminatory manner, the net effect of which was to deny the appellants their right to be tried by a jury which is representative of their community.
“... Although Swain of course involved state rather than federal proceedings, we apply the same standards and analysis in our review of federal criminal trial.” Id. at 1076 (emphasis added; footnote omitted).
Likewise, we have continued to apply Swain to our consideration of habeas corpus applications arising from state convictions in trials after Duncan and Taylor. See Easter v. Estelle, 609 F.2d 756, 759-60 (5th Cir.1980); Prejean v. Blackburn, 743 F.2d 1091, 1103-04 (5th Cir.1984), reh’g en banc denied, 765 F.2d 482 (1985). In Prejean we followed this course despite explicit recognition of the opinions on the denial of certiorari in McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). We cited with approval the Elev*550enth Circuit’s opinion in Willis v. Zant, 720 F.2d 1212, 1217-21 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984), in which that Circuit stated (720 F.2d at 1219 n. 14), “[W]e decline petitioner’s invitation to extend the sixth amendment’s cross-section analysis under Taylor, supra, to the traverse jury itself.” See Prejean, 743 F.2d at 1104 & n. 11. See also Sonnier v. Maggio, 720 F.2d 401, 407-08, reh’g en banc denied, 723 F.2d 907 (5th Cir.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984).
These holdings are consistent with a vast host of decisions by other Circuits which have applied the Swain analysis in federal prosecutions, and in habeas cases for state trials after Duncan and Taylor. No useful purpose would be served by citing all of these cases. Some pre-date Swain itself, such as Hall v. United States, 168 F.2d 161 (D.C.Cir.), cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948), where the dissent was expressly grounded on the theory that the jury must be drawn from a cross section, with no cognizable group intentionally excluded, and that the federal courts should ensure this by use of supervisory powers over peremptory challenges. Id. at 165-66. Hall was cited with approval in Swain, 85 S.Ct. at 836 n. 26, and also by this Court in Carlton, 456 F.2d at 208. Some of the more recent federal appellate decisions to the same effect are collected in the dissent in McCray v. Abrams, 750 F.2d at 1136.13 McCray appears to be the first federal appellate decision reaching a contrary result, albeit over a vigorous dissent.14 Since then, a panel of the Sixth Circuit has followed McCray, see Booker v. Jabe, 775 F.2d 762 (6th Cir., 1985), while a panel of the Tenth Circuit has declined to do so. United States v. Brown, 770 F.2d 912 (10th Cir.1985).
Before the 1978 decision in People v. Wheeler, the state courts had been unanimous in following the principle of Swain. See Annot., 79 A.L.R.3d 14 (1977). Wheeler itself, though it gives extensive consideration to decisions of the United States Supreme Court, is ultimately based on the California Constitution. The California Supreme Court stated:
“The court’s motivation in Swain seems to have been its desire to avoid what it believed would be ‘a radical change in the nature and operation of the [peremptory] challenge’ (380 U.S. at pp. 221-222, 85 S.Ct. at p. 836), and we strongly suspect that desire has survived the advent of the Taylor rule. We therefore assume that if the present question were before the high court it would reaffirm Swain and reach the same result under *551the representative cross-section rule as it did under the equal protection clause.” 583 P.2d at 767 (footnote omitted).15
Other states that have followed Wheeler have likewise based their decisions on local law. See Commonwealth v. Soares, supra; State v. Neil, 457 So.2d 481, 486 (Fla.1984); Riley v. State, 496 A.2d 997 (Del.1985); State v. Gilmore, 199 N.J.Super. 389, 489 A.2d 1175 (1985). See also State v. Crespin, 94 N.M. 486, 612 P.2d 716, 718 (1980).
However, the Swain approach remains the overwhelming majority rule among the states. Justice Marshall, dissenting from the denial of certiorari in Gilliard v. Mississippi, 464 U.S. 867, 104 S.Ct. 40, 43, 78 L.Ed.2d 179 (1983), observed:
“To my knowledge, in the five years since Wheeler and Soares, not a single state supreme court has imposed state constitutional limits on peremptory challenges. In fact, over the same period, at least 19 jurisdictions have considered the issue and, following Swain, reaffirmed their view that the exclusion of Negroes by peremptory challenges is constitutional in the absence of evidence of systematic exclusion.” (Footnotes omitted.)16
Moreover, when Swain was decided the cross-section principle already had long been established, and was indisputably applicable to the states at least as it pertained to the Swain context, namely, a black defendant challenging his conviction on the ground that the jury selection procedures tended to reduce the presence of blacks in the venire and on the jury below the level of a representative cross section. Thus, Justice White stated for the court in Taylor:
“A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), that ‘[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.’ ... A state jury system that resulted in systematic exclusion of Negroes as jurors was therefore held to violate the Equal Protection Clause of the Fourteenth Amendment.
“... In Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953), the Court declared that ‘[o]ur duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.’
“The unmistakable import of this Court’s opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative, cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” 95 S.Ct. at 696-97.17
*552Indeed, Swain part II is largely based on an analysis of the current and historical role of the peremptory challenge in the common law and American jury system generally. It particularly relies on federal criminal cases, such as Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Harrison v. United States, 163 U.S. 140, 16 S.Ct. 961, 41 L.Ed. 104 (1896); Miles v. United States, 13 OTTO (103 U.S.) 304, 26 L.Ed. 481 (1881); and Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). The opinion likewise carefully traces the history of the use of the peremptory challenge in federal criminal trials up to 1965. Accordingly, it stands Swain on its head to suggest that it could possibly be consistent with a holding that the sixth amendment’s guarantee of trial “by an impartial jury” forbids the kind of peremptory challenge approved in Swain part II. That portion of Swain was premised on the conclusion that the type of peremptory challenge there sustained was an integral and recognized part of such a jury trial. The equal protection clause was thought not to forbid what was so clearly authorized as a significant part of the constitutionally required jury trial.
Moreover, the cross-section principle is inapplicable to the kind of group-based peremptory challenge dealt with in Swain part II. To begin with, the cross-section cases are largely couched in terms of systematic exclusion. Further, the cross-section principle is applied to the formation of the venires, not the individual juries selected from them.18 Thus, in Apodaca v. Oregon,
*553406 U.S. 404, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972), Justice White, citing Swain, stated:
“All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U.S. 202, 208-209, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965) ....” (Emphasis added.)
Similarly, in Taylor, Justice White wrote for the Court:
“If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. it
“It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition ... but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” 95 S.Ct. at 699, 702 (emphasis added).
And, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), Justice White again speaking for the Court observed:
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. It
“Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process.” Id., 99 S.Ct. at 668-69 (emphasis added).
See also Rabinowitz v. United States, 366 F.2d 34, 59 (5th Cir.1966) (“The focus of the law is on the list from which the jury is drawn and not on the composition of a particular jury----”).
Plainly, then, the cross-section theory does not speak to the use of peremptory challenges of the Swain part II variety. *554They are not systematic, and they do not relate to the formation of the venires.
The argument has been made that restricting the cross-section requirement to the venire selection process is meaningless, because juries decide cases while venires decide nothing. See McCray, 750 F.2d at 1128. This contention, however, ignores the vast difference in function and purpose between selection for a venire and selection for a jury. Exclusion from the venire summons process implies that the government (usually the legislative or judicial branch), in its capacity as the neutral structurer of the overall justice system, has made the general determination that those excluded are unfit to try any case. Exercise of the peremptory challenge, by contrast, represents the discrete decision, made by one of two or more opposed litigants in the trial phase of our adversary system of justice, that the challenged venireperson will likely be more unfavorable to that litigant in that particular case than others on the same venire.
Thus, excluding a particular cognizable group from all venire pools is stigmatizing and discriminatory in several interrelated ways that the peremptory challenge is not. The former singles out the excluded group, while individuals of all groups are equally subject to peremptory challenge on any basis, including their group affiliation. Further, venire-pool exclusion bespeaks a priori across-the-board total unfitness, while peremptory-strike exclusion merely suggests potential partiality in a particular isolated case. Exclusion from venires focuses on the inherent attributes of the excluded group and infers its inferiority, but the peremptory does not. To suggest that a particular race is unfit to judge in any case necessarily is racially insulting. To suggest that each race may have its own special concerns, or even may tend to favor its own, is not. For instance, it says nothing adverse, or even truly racial, about blacks to infer that they may be more likely to have greater antipathy to the Ku Klux Klan than whites. Finally, the role played by the decision maker is significant. If the neutral structurer of the system excludes a cognizable group, the exclusion necessarily represents the official judgment of society that the group is generally inferior. Under the adversary framework of a trial, however, society is neutral; neither side is favored, neither speaks for society. To be peremptorily challenged by one side or the other hence bespeaks a judgment which is neither societal nor even normative, but merely reflects the tactical determination of one contesting litigant’s counsel that the challenged person is, under the discrete facts of that particular case, more likely to favor the other side.
Moreover, the operative effects of the peremptory challenge cannot be equated to those of the general exclusion from venire pools. All peremptory challenges have a “price” in other peremptories foregone. The jury drawn from a venire representative of all cognizable groups, but from which one group has been eliminated by prosecution group-based peremptory challenges, generally is more likely to be acquittal prone than a jury drawn from an otherwise similar venire that happens to include no members of that same group. In the latter instance, unlike the former, the prosecution could eliminate the most acquittal prone of the venire by using peremptory challenges it otherwise would have used to eliminate individuals affiliated with the group in question. Therefore, inclusion of a group in the venire is not “meaningless” to the end result simply because that group may be eliminated from the trial jury by peremptory challenge. Further, general systematic exclusion from venire pools allows greater ability to predict, in advance of the decision to prosecute, the composition of the jury which will try the case. If no cognizable group is excluded from the venire formation process, the decision to prosecute normally cannot be made with assurance that any given group will not be so represented on the particular venire from which the trial jury will be drawn that it cannot be eliminated by peremptory challenges (or can be eliminated only at unacceptable cost in terms of other peremptories foregone). *555The prosecution in this case, for example, could not have known in advance that the twenty-eight venirepersons here would not have included nine instead of six blacks, or six blacks and three others whom the prosecution would have felt it imperative to peremptorily strike.
Further, mirroring of the community’s mixture of all “cognizable” groups at the actual trial-jury level is not the “be all and end all” of the jury system as we have known it. If it were, we would take steps to more nearly ensure that the composition of each individual jury roughly mirrored the community’s group mixture with respect, say, to male and female, “Anglo,” “Hispanic,” and “Black.”19 Obviously, however, any such approach is completely contrary to the jury system as we understand and have employed it throughout our history. Indeed, the Supreme Court’s decisions that the sixth amendment requires neither juries larger than six nor unanimous verdicts, despite the general practice and long history of a unanimous jury of twelve, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 1898-1900, 26 L.Ed.2d 446 (1970); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 1623, 1625, 32 L.Ed.2d 152 (1972) (due process); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972), necessarily bespeak the limited strength of the cross-section principle as applied even to the systematic structuring of the trial jury. Juries of six are obviously much less likely to have minority representation than juries of twelve, and unanimity obviously increases the power of the minority. The Court was plainly aware of these considerations. See Williams, 90 S.Ct. at 1906 & nn. 46-47. This is not to say that cross-section considerations were deemed irrelevant to such systematic structuring, but merely that they were not controlling. In respect to the five-person Georgia jury system, the Court in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 1040, 55 L.Ed.2d 234 (1978), stated that “the question of representation does constitute one factor of several that, when combined, create a problem of constitutional significance under the Sixth and Fourteenth Amendments.” Nevertheless, Ballew refused to retreat from Williams, despite recognition that ten-percent minorities would be wholly without “representation” in over half of six-person juries, as contrasted to less than thirty percent of twelve-person juries. Ballew, 98 S.Ct. at 1037.20
That factors other than those relating to the cross-section principle are important to *556the concept of the criminal jury is likewise reflected by the passage in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 1890, 26 Li.Ed.2d 437 (1970), which describes “the primary purpose of the jury” as follows:
“[T]he jury interposes between the accused and his accuser the judgment of laymen who are less tutored, perhaps than a judge or panel of judges, but who at the same time are less likely to function or appear as but another arm of the Government that has proceeded against him.” (Footnote omitted.)
Similarly, Apodaca states:
“[T]he purpose of trial by jury is to prevent oppression by the Government by providing a ‘safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' Duncan v. Louisiana, 391 U.S., at 156, 88 S.Ct., at 1451. ‘Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen ... ’ Williams v. Florida, supra, 399 U.S., at 100, 90 S.Ct., at 1906.” 92 S.Ct. at 1632-33.
The United States Constitution does not speak of a “cross section” or “representative” or similarly described jury. Of course, this does not mean that our jury system does not embrace cross-section values. But it does mean that such values are embraced in the context of, and are limited by, the overall concept of trial by jury. That concept, as Swain makes clear, includes peremptory challenges, both for individual and group characteristics, when made for the purposes of the particular case being tried. This is likewise evident from Williams, where Justice White, responding to the argument that the jury of six impermissibly diluted community cross-section representation, observed:
“Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge.” Williams, 90 S.Ct. at 1907 (emphasis added).
The same conclusion is to be drawn from Justice White’s reference in Taylor to the Federal Jury Selection and Service Act of 1968 (Pub.L. No. 90-274, § 101, 82 Stat. 54, 28 U.S.C. § 1861 et seq.) as embodying a proper recognition and implementation of the principle “that the requirements of a jury’s being chosen from a fair cross section of the community is fundamental to the American system of justice.” 95 S.Ct. at 697. The Act expressly provides that “no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors: provided, that any person summoned for jury service may be ... (3) excluded upon peremptory challenge as provided by law, ____” 28 U.S.C. § 1866(e). The Taylor opinion also refers to the legislative history of this Act, including the House and Senate Committee Reports. Id. at 697 nn. 7-8. The following from the House Committee Report is hence significant:
“The act guarantees only that the jury shall be ‘selected at random from a fair cross section of the community.’ It does not require that at any stage beyond the initial source list the selection process shall produce groups that accurately mir- . ror community makeup. Thus, no challenge lies on that basis. U
“... It should be noted, however, that the bill does not change the method of challenging jurors at voir dire. In particular, the bill leaves undisturbed the right of a litigant to exercise his peremptory challenges to eliminate jurors for purely subjective reasons.” H.R. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News 1792, 1794-95 (emphasis added).
This legislation was enacted only three years after Swain, and the right to peremptorily challenge for purposes of the case being tried on the basis of race or other group characteristic was then well-settled in federal prosecutions. Thus the Supreme Court in Taylor must have realized that Congress in 1968 included the Swain part II type peremptory within *557those “provided by law” which Congress intended to leave “undisturbed.”
The sixth amendment does, of course, require an “impartial” jury. This requirement of impartiality is applicable to each particular, individual jury, in each discrete case. It does not, however, imply that a party is entitled to any representative of his or her “group” on the jury,21 even where that group is a significant one in the community where the trial takes place and from which the venire is drawn. Taylor, 95 S.Ct. at 702 (“[N]o requirement that petit juries actually chosen must ... reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition____”).
What the impartiality requirement does imply is a jury each of whose members is willing and able to decide the case solely on the basis of the evidence introduced at trial and the instructions of the court. See Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984) (“The constitutional standard [is] that a juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court.”). While normally only demonstrated and almost complete inability to put aside extraneous considerations requires that a challenge for cause be sustained, and it is often “scarcely possible to avoid” jurors “whose minds are entirely uninfluenced by opinions previously formed,” nevertheless the ideal remains jurors who will “stand perfectly indifferent between the parties” and “who fe[el] no bias either way.” Queen v. Hepburn, 7 Cranch (11 U.S.) 290, 297-98, 3 L.Ed. 348, 350 (1813). Hence, challenge for cause may properly be sustained in instances where such action is not absolutely required. Id. In this connection, it is also recognized that bias — i.e., lack of impartiality in the referenced sense — may arise because of a group characteristic. See, e.g., Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 472-73 & nn. 1-3, 75 L.Ed. 1054 (1930)22; Miles v. United States, 13 OTTO (103 U.S.) 304, 26 L.Ed. 481 (1881); Queen v. Hepburn, supra; Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 850-51, 35 L.Ed.2d 46 (1973).23 Though excusing jurors for such bias may reduce the cross-sectionalization of the jury, we have recognized that “[a] cross-section of the fair and impartial is more desirable than a fair cross-section of the prejudiced and biased.” Smith v. Balkcom, 660 F.2d 573, 583 (1981), modified in other respects, reh’g en banc denied, 671 F.2d 858 (5th Cir.), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).
Plainly, however, the challenge for cause is an inadequate tool for the elimination of bias. To begin with, bias exists along a continuum of strength or degree; its place on that-continuum will often be impossible *558to even roughly gauge with assurance, and will frequently depend on the circumstances of a particular case. It is both impractical and undesirable to lay down the sort of general rule implicit in the concept of challenge for cause for any but the clearest ahd strongest cases. This does not, however, mean that bias of a “lesser” kind has no tendency to undesirably inhibit the juror in the task of deciding the case solely on the evidence and the court’s charge. Cf. Queen v. Hepburn, supra.
Moreover, even if the juror has a bias which would give rise to a proper challenge for cause, this fact may not be demonstrable. This was recognized in Swain, 85 S.Ct. at 836, as well as in a host of other decisions. See, e.g., Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). As the New York Court of Appeals stated in People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 444, 443 N.E.2d 915, 918 (1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983):
“First, jurors may be reluctant to admit their prejudices before spectators or others present in the courtroom during the voir dire. Second, certain prospective jurors may evade full disclosure of their prejudices in an effort to avoid being struck from the jury. Finally, other prospective jurors may simply be unaware of the existence of certain biases or prejudices they may harbor.”
Further, the availability of the peremptory protects the challenge for cause by protecting against juror hostility resulting from the inquiry. Swain, 85 S.Ct. at 836; Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 138, 36 L.Ed.1011 (1892). As expressed in People v. McCray:
“Pointed questions directed at an area as sensitive as a potential juror’s racial, religious or sexual biases may, even where such biases do not exist, alienate a juror against counsel and his position.” 457 N.Y.S.2d at 444, 443 N.E.2d at 918.24
Thus, the peremptory challenge plays an important role in the parties’ quest for the “impartial” jury — the jury of the sixth amendment, composed of those who are willing and able to decide the case solely on the evidence and the law. As Swain states:
“The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.” 85 S.Ct. at 835.
See also Lewis, 13 S.Ct. at 138 (“essential to the fairness of trial by jury”); Hayes, 7 S.Ct. at 351 (“to secure the impartiality of jurors”); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965) (“likely to produce a fair result”). The extent to which a juror's circumstances may affect his impartiality depends on the likelihood of the inference of bias and the strength of the bias inferred, under the facts of a particular trial, but not, per se, on whether the source of the potential bias is affiliation with a “cognizable” group as distinguished from all other possible sources. The potential for bias of Catholic against Ku Klux Klan member is not inevitably less in every trial than that of one with long hair25 against the police.
It has been argued that one party’s peremptories may exclude all of a minority group, while the other’s peremptories will be insufficient to exclude the majority, with resulting unfairness to the minority party. See Soares, 387 N.E.2d at 516. To the *559extent this reasoning implies that the resulting jury is actually unfair to the minority party, any such unfairness is no greater — and is indeed calculated to be less, for the reasons previously noted — than that which might exist where the lack of minority representation results from venire composition due either to chance or to the paucity of minority residents in the community, from challenge for cause, or from peremptory challenge for “individual” reasons. To the extent that the argument rests on analogy to the cross-section cases, either in their equal protection or in their sixth amendment rationales, it does not take into account the previously noted differences between the venire-formation and peremptory-challenge processes.
As a justification for prohibiting all peremptory challenges based on “cognizable” group affiliation, the “elimination of the minority” rationale is also subject to other objections. “Cognizable” group classifications are not limited to those of minority and majority, but rather include classifications such as gender, national ancestry, religion and possibly economic status, respecting which the divisions in a given community may be approximately equal.26 Nor has it been suggested that group-based peremptories are permissible against majorities but not minorities.27 Moreover, the prohibition presumably would extend to peremptories based on minority-group affiliation even where that minority group, either because of its chance “overrepresentation” on the particular venire or some other reason, would not be wholly eliminated from the panel or even reduced significantly below its proportion in the community.28 Indeed, the minority might not be reduced below its proportion on the venire.29
*560Finally, the “elimination of the minority” argument assumes that if the prosecution strikes minority group members on the basis of their group affiliation, then majority group members inevitably must be as likely to be as conviction prone as the minority group members are acquittal prone. This, in turn, assumes that in any such situation the minority and majority are equally homogeneous and stand at opposite poles from one another with respect to their attitudes concerning the case. However, this is not necessarily so. To the contrary, as applied to a given situation the feelings among any one group may be strong and nearly unanimous, while among another group there may be both substantially more diversity and less intensity of attitude.30
A somewhat analogous point is made in Note, Peremptory Challenges and the Meaning of Jury Representation, 89 Yale L.J. 1177 (1980). This student writing convincingly argues that prosecution group-based exercise of péremptories will tend to distort trial juries away from the mean of the community’s relevant attitudes only when such attitudes are asymmetrically distributed about the community mean and the challenged group comprises an acquittal extreme more distant from the mean than the conviction extreme. In other situations, the prosecution’s use of group-based peremptories will enhance the tendency of the trial jury to reflect the mean of community attitudes, while in still others it will have no effect one way or the other on that tendency.31 Significantly, “[tjhere is *561currently no empirical evidence as to which distribution [of attitudes] exists in any given community for any range of cases.” Id. at 1196.
We reaffirm our prior holdings that the group-based peremptory challenge of the kind considered in Swain part II is constitutional, not only under the equal protection clause but under the sixth amendment as well. This conclusion is premised on the understanding that such challenges do not run counter to, but rather form a recognized part of, the mix of values inherent in the concept of trial by jury as provided for in the sixth amendment and article III, section 2, clause 3.
Supervisory Power
We decline the invitation to achieve a different result under the guise of employing our supervisory power. To begin with, the same considerations that support or oppose the constitutional challenge equally support or oppose such employment of the supervisory power. “The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the” sixth amendment. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 2446-47, 65 L.Ed.2d 468 (1980). Moreover, the numerous decisions that have left intact the prosecution’s and defense’s unfettered use of peremptory challenges for purposes of the particular case being tried were not decided on the theory that although racially based challenges are undesirable or even illegal they nevertheless are not so egregious as to be unconstitutional. Rather, those decisions were based on the determination that such unfettered use, including consideration of group affiliation, is an essential element of the peremptory challenge itself and has consistently been recognized as a proper, important and integral part of trial by jury. For us to forbid such challenges in essence “amounts to a substitution of individual judgment for the controlling decisions” of the Supreme Court and the prior panels of this Court. See Payner, 100 S.Ct. at 2447. As the Second Circuit said in United States v. Newman, 549 F.2d 240, 250 (2d Cir.1977), it would be an “unprecedented assumption of power.”
In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 1978-79, 76 L.Ed.2d 96 (1983), the Supreme Court, rejecting use of the supervisory power to avoid the harmless error rule, explained:
“The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights [citations omitted]; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury [citations omitted]; and finally, as a remedy designed to deter illegal conduct [citation omitted].”
None of these considerations is significantly implicated here. There is no violation of recognized rights; instead, the suggested exercise of supervisory power would violate the long recognized rights of litigants to consider group affiliation in utilizing peremptory challenges for purposes of the case being tried and to do so free of judicial inquiry and control. And, as such exercise *562of peremptories is plainly legal, use of the supervisory power to prevent it may not be justified on the basis of deterring illegal conduct. Nor does such a use of the supervisory power in any way implicate “the considerations validly before the jury.” See also United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.1985) (exercise of supervisory power proper “only when a recognized right has been violated,” and even then suggesting caution).
Apart from the foregoing, other considerations likewise militate against such use of the supervisory power. The prosecution has been entitled to peremptory challenges, or their equivalent, continuously since the formation of our nation, as well as for centuries prior thereto under the common law. This right has had express statutory recognition continuously from 1865 until its inclusion in Rule 24(b) of the Federal Rules of Criminal Procedure effective in 1946, where to this date it has remained unchanged in any relevant particular.32 Such a rule “has the force of a federal statute.” Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941). As previously noted, Congress in 1968, though obviously well aware of Swain and the long application of its principles in the federal courts, considered but elected “not [to] change the method of challenging jurors” and “in particular” determined to “leave[ ] undisturbed the right of a litigant to exercise his peremptory challenges.” H.R.Rep. No. 1076, 90th Cong., 2d Sess., supra. Addressing cross-section concerns and prohibiting the exclusion of any class from jury service, Congress nevertheless excepted peremptory challenges from this prohibition and affirmatively authorized juror exclusion pursuant thereto. 28 U.S.C. § 1866(c). Nevertheless, we are asked to order a procedure which, as characterized in Swain, “entail[s] a radical change in the nature and operation of the challenge” and is directly contrary to its “essential nature,” and “wholly at odds with the peremptory challenge system.”33 The super*563visory power simply does not extend to making changes of that nature and magnitude in the system established by Congress and the statutory rule-making process. In Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 1225 n. 11, 3 L.Ed.2d 1287 (1959), the Supreme Court observed that “[t]he power of this Court to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress.” There, the Court declined to expand the production requirements provided by the Jenks Act, even though that “statute does not, in so many words, state that it is the exclusive, limiting means of compelling” production. Id., 79 S.Ct. at 1223. The same considerations apply to the Rules of Criminal Procedure, which have statutory effect. Sibback, 61 S.Ct. at 426. Moreover, the Supreme Court has emphasized the value placed by Congress on “the reservation of the power to examine proposed rules, laws and regulations before they become effective.” Id. at 427. This plainly applies to pre-verdict rules of criminal procedure. See note 32, supra. We should not make an end run around that process. Indeed, even where the matter is not within an area concerning which Congress has made such a reservation of power, basic procedural innovations of great importance to litigants, as the suggested change in the peremptory challenge most certainly is, call for exercise of the statutory rule-making process. As the Supreme Court observed in Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 1305-06, 4 L.Ed.2d 1462 (1960):
“[T]he matter is one which, though concededly ‘procedural,’ may be of as great importance to litigants as many a ‘substantive’ doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed.
“The problem then is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rule-making powers of the Court, see 28 U.S.C. § 331, 28 U.S.C.A. § 331 (advisory function of Judicial Conference), 28 U.S.C. § 2073, 28 U.S.C.A. § 2073 (prior report of proposed rule to Congress), designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters with all the opportunities for comprehensive and integrated treatment which such consideration affords.”34
*564See also United States v. Isthmian Steamship Co., 359 U.S. 314, 79 S.Ct. 857, 862, 3 L.Ed.2d 845 (1959) (“if the law is to change it should be by rulemaking or legislation and not by decision”).
Neither Thiel v. Southern Pac. Co., 66 S.Ct. 984 (1946), nor Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), fairly supports a contrary analysis. Ballard, expressly, and Thiel, implicitly, rest on the proposition that the practices there condemned constituted “a departure from the statutory scheme.” Ballard, 67 S.Ct. at 265 (also at 264). See also Thiel, 66 S.Ct. at 987 (nothing in “federal or state law” justifies the condemned practice). Here the very opposite is the case: what we are asked to decree is “a radical change” from, and “wholly at odds” with, the “essential nature” of a right expressly authorized by the Federal Rules of Criminal Procedure and 28 U.S.C. § 1866(c). Further, Ballard and Thiel are supported by “[t]he American tradition of trial by jury.” Thiel, 66 S.Ct. at 985; Ballard, 67 S.Ct. at 263. Here we are asked to enact a practice that flies directly in the face of that tradition. Finally, Thiel and Ballard involved judicial supervision of the judiciary — the Supreme Court supervising the lower federal court-formulated venire summons practice. Here, by contrast, we are asked to intrude into decisions committed by law to the executive branch, namely, against whom should its peremptory strikes be exercised for the purpose of a particular case. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), is inapposite for all the same reasons.35
Moreover, the rule appellant asks us to adopt will either eviscerate the defense’s use of peremptories or improperly tilt the scales of justice against the prosecution. Of course, the prosecution is entitled to a fair trial and the defense is not entitled to a jury partial in its favor. Challenges are one means to this end. See Wainwright v. Witt, — U.S.-, 105 S.Ct. 844, 851-52, 83 L.Ed.2d 841 (1985); Smith v. Balkcom, 660 F.2d at 579; Spinkellink v. Wainwright, 578 F.2d 582, 596 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). The prosecution is no less entitled to the unfettered use of its allotted peremptories than the defense. As the Supreme Court said in Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887), in such matters “the scales are to be evenly held” between prosecution and defense. This view was reaffirmed in Swain respecting the same proffered restriction on prosecution exercise of peremptories that is at issue here. 85 S.Ct. at 835. Similarly, in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), a unanimous *565Court, speaking through Chief Justice Warren, stated:
“The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. This recognition of the Government’s interest as a litigant has an analogy in Rule 24(b) of the federal rules, which permits the Government to challenge jurors peremptorily.”
Rule 24(b) neither by its terms nor its history makes any distinction between the prosecution and defense with respect to the reasons for which peremptory challenges may be exercised. By what right, then, may we do so?
We note that every jurisdiction which has spoken to the matter, and prohibited prosecution case-specific peremptory challenges on the basis of cognizable group affiliation, has held that the defense must likewise be so prohibited. See Wheeler, 583 P.2d at 765 n. 29 (“[T]he People ho less than individual defendants are entitled to a trial by an impartial jury drawn from a representative cross-section____[W]hen a white defendant is charged with a crime against a black victim, the black community as a whole has a legitimate interest in participating ____[Tjhat interest will be defeated if the prosecutor does not have the power to thwart any defense attempt to strike all blacks____”); Soares, 387 N.E.2d at 517 n. 35; Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495 (1981); Commonwealth v. DiMatteo, 12 Mass.App. 547, 427 N.E.2d 754 (1982); State v. Neil, 457 So.2d at 487 (“[B]oth the state and the defense may challenge the allegedly improper use of peremptories. The state, no less than a defendant, is entitled to an impartial jury” (footnote omitted).); Booker v. Jabe, supra, at 772 (“[W]e hold that under the Sixth Amendment, neither prosecutor nor defense counsel may systematically exercise peremptory challenges to excuse members of a cognizable group from service on a criminal petit jury.”).- See also United States v. Clark, 737 F.2d 679, 682 (7th Cir.1984) (“It would be hard to argue that only a defendant should be allowed to challenge racially motivated peremptory challenges____ [T]he prosecutor would be allowed to object to the defendant’s making racial peremptory challenges if the defendant could object to the prosecutor’s doing so.”).36
Accordingly, adoption of the position contended for by appellant seems likely to ultimately result in a serious weakening of what the Supreme Court has justly described as “ ‘one of the most important of the rights secured to the accused,’ Pointer v. United States, 151 U.S. 396, 408 [14 S.Ct. 410, 414, 38 L.Ed. 208] ... [1894] ... [t]he denial or impairment of ... [which] is reversible error without a showing of prejudice, Lewis v. United States, supra; Harrison v. United States, 163 U.S. 140 [16 S.Ct. 961, 41 L.Ed. 104] ... [1896].” Swain, 85 S.Ct. at 835. No longer, then, could the defendant “peremptorily challenge ‘on his own dislike’ ”; no longer would we follow the rule that whatever “prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned.” Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).37
*566III.
Conclusion
We are persuaded that prosecution or defense peremptory challenges of the Swain part II variety are constitutional and lawful notwithstanding that they may be motivated in whole or in part by the challenged venireperson’s race, gender, or other group affiliation, and that such motivation is not the proper subject of judicial inquiry in cases of this kind where there is no claim or reason to suspect that the challenges are not made for purposes of securing a jury favorable to the ease at hand. We further decline to change this settled rule by the exercise of supervisory power, which we conclude would be both unwarranted and unwise. Hence we reject appellant Leslie’s complaints respecting the prosecution’s exercise of its peremptory challenges in this case, and his conviction is affirmed.
AFFIRMED.