"We go out of our way to recruit minorities from disadvantaged backgrounds," he said.
Kennedy jumped in.
"So what you're saying is that what counts is race above all," he said. "You want underprivileged of a certain race and privileged of a certain race. So that's race."
Kennedy added later: "I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn't. Well, then, we should just go away. Then we should just say you can't use race, don't worry about it."
Fisher graduated this year from Louisiana State University.
A ruling is not likely before early next year.
The current case is Fisher v. University of Texas at Austin (11-345).