The Wall Street Journal has posted a recording of the controversial Ricci v. Destefano case being argued in front of the three-judge panel of the Second Circuit Court of Appeals — a panel that included President Barack Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor LAW ’79.

“We’re not suggesting that unqualified people be hired, the city’s not suggesting that,” Sotomayor told the firefighters’ attorney, Karen Torre, at one point in the hearing. “[But] if your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”

Sotomayor would later join the unsigned opinion upholding a lower court’s decision to reject the lawsuit, which had been filed by one Hispanic and 19 white firefighters against the city.  The firefighters had said they were denied promotion based on their race, as the city had thrown out their 2003 promotion exam because no black firefighter received a score on the exam high enough to likely earn him a promotion.

You can hear the hour-long recording here.