End FBI background checks, abolish peremptory strikes.

My contemporary files are haphazard and my brain is rusty on applications of the Monthly gospel, so long have I been soaking in the racial and religious affairs of 30 years ago. Removed from public debate--in fact just now learning who Tim Russert is--I have no burning policy changes in mind beyond the desire for a birth of democracy in Haiti, which calls not really for reform but for an application of will. My reform proposals are eccentric leftovers, perfect for the beginning of a president's third term.

* End FBI Background Checks

This practice is an appendage of the Cold War. Truman, having thwarted J. Edgar Hoover's ridiculous ambition to be in charge of foreign intelligence, gave him as a consolation prize the government employee loyalty program. To ensure the fitness of public officials, Hoover naturally used dragnet interviews, faceless accusers, and other Star Chamber methods. Hearings and public witnesses were set aside as too trusting, sloppy, and dangerous in a world of enemies. Without Hoover's vigilance over the government, people feared, Klaus Fuchs would worm his way into David Gergen's office and sell secrets to Saddam long before anyone figured him for a spy.

The background check is what's left of the loyalty program. Americans take it for granted that no one can be considered for any job, from Supreme Court Justice to deputy assistant secretary, until hordes of highly trained criminal agents have interviewed their kindergarten teachers, all in strictest confidence. Aside from giving every administration some cover for molasses-slow appointments--"We're waiting for the FBI check"--this process has no positive value. It wastes time. For the public, it gives a false, machine-like quality to government appointments. From all angles--senators, citizens, reporters, neighbors--we don't take as seriously the citizenship duty to help evaluate our nominees because we leave responsibility to the FBI.

For the FBI itself, background checks are a senseless diversion from its statutory mission to investigate federal crime. They are also a holdover of Hoover's political agenda, an invitation to corruption by government-wide dossier. No one ever discusses the exact percentage of FBI agents detailed to background investigations, in part, I think, because disclosure opens the subject of an uncomfortable, incompatible FBI mission. The lingering secrecy is a reminder of potential damage to the FBI's performance and reputation. A reform director like Louis Freeh would be well rid of the program.

* Abolish peremptory strikes in court

Here again we genuflect to an archaic ritual. Peremptory strikes are considerably older than Hoover's loyalty program, traceable in English common law to the medieval reign of King Edward I. Back then, early in the development of trials by jury, the crown controlled the panels of prospective jurors, and the reformer King Edward was good enough to reduce his advantage by granting the wretched accused a certain number of arbitrary removals that required no reason or explanation. According to the great British legal theorist Blackstone, the establishment of the peremptory challenge was a "provision full of that tenderness and humanity to prisoners for which our English laws are justly famous."

In America, where we have fewer crowns and more lawyers, we gave peremptory strikes to the prosecutors, too. The numbers and procedures vary, but before jury trials there comes a stage first when jurors are removed for cause. By confession and examination before the judge, those with a personal connection, conflict, or express bias are excused. Then comes the game of peremptory strikes, in which the opposing lawyers trade removals from the jury box, usually with no more procedure than whispered conference and long silent stares. Sometimes the lawyers are allowed to have a juror stand silently to show off the cut of his or her jib, but the whole point of "peremptory" is that the strikes are wordless and unexplained. The exercise is pure wizardry on the part of the battling lawyers.

I first questioned peremptory strikes because of the added burden on citizens. For each trial, court clerks must call in advance two or three times more people than needed to jury duty to allow for the strikes, and since the opposing lawyers presumably neutralize each other, I wondered what theoretical gain for justice might justify the inconvenience, expense, and indignity. (Even the judge seems reduced during the process, telling the struck jurors, who are usually ecstatic to be leaving, that they should not feel personally rejected.) Why not simply draw a random jury from those not excused for cause? Having first screened those with a discovered bias, why go to so much trouble to put the bias back in through a silent lawyers auction of jurors?

Over the years, I found one constitutional lawyer friend who put me on to Blackstone's explanation, but no one who knew or offered an argument as to why we have better juries after the peremptory strikes. It boiled down to naked precedent, which counts for a lot, of course. In this one area, the law is so determined to preserve what Blackstone calls an "arbitrary and capricious" feature that very important cases have come before the Supreme Court over the past two decades testing whether the peremptory strikes are peremptory enough. First in race cases, then in sex cases, the Court's rulings have moved toward a standard of restricted or refined arbitrariness, to require that the strikes not be racially or sexually guided. In other words, the lawyers are supposed to be thinking arbitrarily, since they cannot examine the thoughts or histories of the jurors, but the first thing that pops into their minds should not be the race or sex of the jurors in the pool.

This is a complicated new field of litigation, and I do not wish to minimize the subtleties involved. Since the whole point of peremptory strikes is that the lawyers are kings here, and must not give a reason, it is no small difficulty for appeals courts to scrutinize any reasoning that might have crept in. Does the right to be arbitrary shield the lawyers from examination? If forced to answer, are trial lawyers ethically bound to say they didn't have any reason for their strikes? The attempt to reconcile privilege with open fairness is absurd on its face, which, of course, entices legal theorists. Appeals judges have decided that certain clusters of strikes--such as prosecutors excluding male jurors in rape cases--are peremptory but not capricious, in that a certain logic may be inferred from the pattern. In other words, some patterned arbitrariness is too rational to be capricious, and must be proscribed by any reasonable test of what is legally peremptory.

If the contending lawyers were permitted to admit any strategic thought behind their strikes, they would be obliged to say they were thinking of something like hair color or age rather than sex or race. Future appeals may find that any pattern loses the required capriciousness and becomes rational enough to be banned as hairism and ageism. Now that the peremptory strikes are more carefully conducted and reviewed--requiring more billing time and more jurors--many lawyers will affect a kind of random arbitrariness in their strikes. However, this defense raises a danger that some fool like myself will propose getting the same results by drawing names from a hat. To protect the dignity of the bar from such simplicity, shrewd practitioners will maintain that legal training and experience confer a mystical ability to recognize a certain je ne sais quoi of justice, one way or other, in the blank face of every prospective juror.