You're wrong. Debate on a change to the rules of the Senate can only be closed with the consent of two-thirds of the Senators present and voting...that's 67 votes, a "super fillibuster", as opposed to the 60 required to close debate on other questions. See Senate rule XXII.
Makes the possibility of a rule change highly unlikly. While I'd like to impute pure and noble motives to the Senate Republicans, I don't think enough of them will want to give up the possibility of having this leverage for their own future use. What if the shoe was on the other foot with John Kerry elevating some ultra-liberal judge from the California 9th District Court of Appeals to the Supreme Court and the Repulicans were in the Senate minority?
Which possibility was very close to being realized and could well be in one or two election cycles. We all understand the impatience to radicalize the SC on certain issues (called conservative if you agree with it all), but real change procedes at what many will perceive to be a glacial pace. It is the genius of the system put in place by our founding fathers. It may be frustratingly slow, but it keeps things from getting too out of kilter too fast. It keeps us from being like Italy or France.
Why filibuster is unconstitutional
No, the cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment--that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
So we have a meta-filibuster.
And if that is to be argued, then a meta-meta-filibuster.
And...